Powers of TYT in appointing Sabah CM

Published on: Sunday, January 29, 2023

By: S Vanugopal

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'Pending the Federal Court revisiting its decision in the Perak Case, it is prudent to understand the true limits to the powers of the Head of State in the appointment of the CM under Articles 6(3) read with 6(7) of the State Constitution'. File pic: Hajiji being sworn in as CM.

Once again in the Land Below the Wind the sands are shifting with the tides. It concerns the shifting allegiance of the elected members of the State Legislature and the concomitant issue as to which person commands the majority support of the Legislative Assembly to qualify to be appointed as the Chief Minister of the State (CM) had risen.

This time around the Head of State was spared the onerous task of deciding whether the sitting CM continued to have the majority support in the Assembly.

Recent court decisions have in fact encouraged the determination of the majority support in legislatures by means other than by a vote taken at the floor of the legislature, including such extraneous means through statutory declarations or by a list containing the names of the elected representatives expressing support.

In Dato’ Seri Ir. Hj. Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (the “Perak Case”), the Federal Court held that the evidence of loss of confidence in the Mentri Besar may be gathered from other extraneous sources other than by a vote of confidence in the Assembly even though the Perak State Legislative Assembly had been convened.

The decision in the Perak Case was followed by the High Court in Tan Sri Musa Hj Aman v Tun Datuk Seri Panglima Hj. Juhar Hj Mahiruddin & Anor [2019] 2 CLJ 813 in which the Court accepted the support pledged in the statutory declarations to another elected leader and held that “there was no mandatory requirement that there must be a motion of no-confidence passed in the Assembly against a CM before he ceases to command the confidence of the majority of the members of the Assembly”.

The High Court further thought that this lack of confidence as expressed in the statutory declaration has triggered Article 7(1) and that the sitting CM must mandatorily tender his resignation.

The Court of Appeal [2020] 3 CLJ 42 upheld the correctness of the High Court decision.

Pending the Federal Court revisiting its decision in the Perak Case, it is prudent to understand the true limits to the powers of the Head of State in the appointment of the CM under Articles 6(3) read with 6(7) of the State Constitution.

The said provisions must be understood within the wider framework upon which the Constitution was framed.

Central to the State Constitution, as to the Federal Constitution, which are founded on the Westminster system of Government, is the doctrine of separation or division of powers of the Government.

Under this doctrine the powers of the Government are divided into three branches, viz, the legislative, executive and judicial powers and are vested in three distinct bodies – the Legislature, the Executive and the Judiciary.

The rationale for the division and vesting of powers of the Government in three different arms is that concentration of powers in a single body will lead to arbitrary excesses.

The three arms being equal in status, independent of each other and by each jealously protecting its own powers, act as a check and balance on the other. This doctrine is the cornerstone of all democratic forms of Government.

The doctrine has largely withstood the passage of time and has proved that liberty is most effectively safeguarded by the separation of powers.

Article 6(3) read with 6(7) is an executive function vested in the Head of State as the executive authority of the State with respect of the appointment of the CM. It is exercised by the Head of State whenever the position of the CM falls vacant.

The vacancy may arise when the Assembly is dissolved or stands dissolved or when the CM tenders his resignation. Once the Head of State appoints the CM, his executive functions in respect of the appointment of CM cease.

For ease of reference these provisions are reproduced below:

Article 6(3)

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 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:

Provided that if an appointment is made while the Legislative Assembly is dissolved a person who was a member of the last Assembly may be appointed but shall not continue to hold office after the first sitting of the next Legislative Assembly unless he is a member thereof.

Article 6(7)

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.

Article 7(1)

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.

When the Head of State appoints the CM under these provisions he ought not be concerned with how the Assembly will express its confidence in the person he would appoint as the CM.

His duty under Articles 6(3) and (7) is only to appoint that person who in his judgment is likely to command the confidence of a majority of the members of the Assembly.

How the Assembly will express its confidence thereafter is strictly a legislative function reserved to the Assembly under Article 7(1). Support for this proposition is found in the judgment of Justice Tan Chiaw Thong who held as follows in the case of Tun Datu Mustapha bin Datu Harun v Tun Datuk Haji Mohamad Adnan Robert, Yang di-Pertua Negeri Sabah & Anor [1986] 2 MLJ 420:

“….. Article 6(3) ….. is solely concerned with the power conferred upon the Head of State to make his judgment of appointing a Chief Minister; it has nothing to do with the powers and functions of the Legislative Assembly with which Article 7(1) is concerned ….. there is nothing in the Constitution to justify the view that in making his judgment, the Head of State is expected, or it is a relevant consideration with him, to take into account how the voting would go, or is likely to go in the Legislative Assembly ….. Why should he be concerned with predicting how members of the Assembly should vote on his choice of Chief Minister ….. the Head of State has unfettered discretion – a discretion which should not be fettered or influenced by considering how the Legislative Assembly would view his selection of a Chief Minister.”

If members of the Legislative Assembly make representation to the Head of State that the sitting CM has lost the confidence of the majority of the members on the Assembly the constitutionally correct thing for the Head of State to do is to leave the matter to the Assembly to decide under Article 7(1) by way of a vote in the Assembly because the matter of loss of confidence is a legislative function reserved exclusively to the Assembly under the doctrine of separation of powers.

If the Head of State decides on the issue of loss of confidence of a sitting CM as represented to him, he would be encroaching into the legislative area and usurping legislative functions.

There is nothing in Articles 6(3), (7) or Article 7(1) that suggest, even remotely, that the matter of loss of confidence is for the Head of State to form a judgment on, in contrast to forming a judgment as to who is likely to command the confidence which is expressly provided for in Article 6(3).

The danger of the Head of State deciding on the loss of confidence of the majority of the members in the Assembly from the pledges of support by way of statutory declarations or from a list containing the names of the members of the Assembly was succinctly put by Chief Justice Harley in Stephen Kalong Ningkam v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 in the following words : “[M]en who put their names to a “Top Secret” letter may well hesitate to vote publicly in support of their private views”.

- Vanugopal is a senior practising lawyer who has a keen interest in constitutional law.

- The views expressed here are the views of the writer Vanugopal and do not necessarily reflect those of the Daily Express.

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