THE last fortnight has thrust a number of constitutional issues to the fore.

By-election: Due to the sad demise of Datuk Zachary David Liew Vui Keong, a former law minister and MP for Batu Sapi, Sabah, a by-election is in the offing.Liew’s humility and humanity had touched many lives. He was passionately committed to law reform in such areas as the plight of the poor, the need for an independent Law Reform Commission, a review of death penalty laws and the special position of Sabah and Sarawak in our federal system.

Many organisations and individuals will remember the openness and passion with which Liew engaged with anyone who had a constructive proposal to discuss with him.His untimely death raises the issue whether in view of the raging Covid-19 pandemic, the by-election in his constituency can be postponed. The answer is that the by-election is legally unavoidable.

Our Constitution is supreme, and the Prevention and Control of Infectious Diseases Act 1988 (Act 342), the National Security Council Act 2016 (Act 776), the Penal Code (Act 574) and the Police Act 1967 (Act 364) cannot override the Constitution’s Article 54(1) which mandates that any vacancy in the Dewan Rakyat shall be filled within 60 days from the date the Election Commission (EC) determines that there is a vacancy.

However, the constitutional obligation to hold a by-election does not prevent the EC, National Security Council and Health Authority under Act 342 from restricting gatherings and processions and imposing all necessary safety and health requirements during the nomination and electioneering period.

But there are two permissible ways for avoiding an election. First, the vacancy can remain unfilled, if the vacancy occurs within two years of the date on which the Dewan Rakyat dissolves under Article 55(3). This provision is not applicable in this case as the present Parliament’s life expires only on July 15,2023 (unless there is an earlier dissolution by the Yang di-Pertuan Agong on the advice of the Prime Minister).Second, Articles 54-55 will have to give way if there is a Proclamation of Emergency under Article 150(1) and an emergency law is enacted to extend the life of Parliament, postpone general elections or prohibit any by-election.

Appointment of Sabah’s Chief Minister: Questions have been raised by some prominent commentators about the constitutionality of the appointment of Sabah Chief Minister Datuk Hajiji Noor by Yang di-Pertua Negeri Tun Juhar Mahiruddin. This requires scrutiny of the relevant provisions of the Sabah Constitution.

Article 14: Sabah has a unique provision that, along with 73 elected legislators, the assembly has six nominated members.

Article 6(3): “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.”

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 6(7) was added to the Sabah Constitution by Enactment No.11/1995 due to controversial episodes after the state elections in 1985 and 1994.

In 1985, Datuk Seri Joseph Pairin Kitingan’s Parti Bersatu Sabah (PBS) garnered 25 out of 48 state seats. But his rivals in Usno and Berjaya, with a total of 23 seats, persuaded the governor to appoint Tun Mustapha Datu Harun as Chief Minister on the questionable justification that with six appointed members, Mustapha would have a majority.

Initially, Mustapha was anointed the post but the Yang di-Pertua later retracted his decision and appointed Pairin. This led to a court case which Mustapha lost.

Sabah’s penchant for drama resurfaced after the 1994 election. PBS won 25 state seats while its opponents won 23, yet Pairin had

to hold a 36-hour vigil outside the Yang di-Pertua’s residence before being sworn in as Chief Minister.

Any interpretation and understanding of Article 6(7) must take note of these shameful episodes that necessitated the amendment.

Hajiji’s appointment: Three main objections have been raised against Hajiji’s appointment. First, that he did not possess a majority. One learned commentator has interpreted “majority” to mean “the greater number”. In his view, as Parti Warisan Sabah had 29 seats, Perikatan Nasional 17, Barisan Nasional 14, PBS seven, independents three, PKR two and Upko one, it was Warisan with 29 seats and not Perikatan with 17 seats that had a majority.Most respectfully, this interpretation does not gel with the workings of parliamentary democracy in which the government must command enough support on the floor to pass laws, push through budgets and defeat no-confidence motions.

To argue that 29/73 is a “majority” is an amazing and unworkable proposition and if followed, will lead to tremendous political instability. Such an interpretation of the term “majority” overlooks the varied meanings of the term in the Sabah Constitution (and others) where we find three types of majorities: “Simple majority” of those present and voting, as in Article 24(3) of the Sabah Constitution; “absolute majority” of the total membership, as in Article 7(1); and “special majority” (which can be 2/3 or 3/4 or as prescribed), as in Articles 24(5) and 24(6).

It is submitted that in Article 6(3) and 6(7), “majority” must mean an absolute majority of the total membership of the assembly, ie 37 out of 73 which the Warisan Plus coalition did not have but the Gabungan Rakyat Sabah (GRS) coalition did.

A second objection to Hajiji’s appointment is that his political coalition, GRS, was not registered. It is submitted that in parliamentary democracies, a political coalition need not be registered. It may be registered pre-election or post-election. As long as it has an absolute majority and unites around a common leader, the head of state has a democratic duty to give its leader a chance to form the government.

The third objection is more complex. The Sabah Constitution in Article 6(7) states that where a political party has won a majority of the elected seats, the leader of such a political party shall be deemed to command the confidence of the majority of the members of the assembly. GRS was not “a political party”. It is submitted that in law, the singular includes the plural. “A political party” includes a coalition of political parties.The real purpose of Article 6(7) was to prevent repetition of the despicable manoeuvrings of 1985 and 1994, and to forbid the Yang di-Pertua from taking the six nominated members into consideration in his choice of the Chief Minister. Article 6(7) was not meant to deny the reality of nonregistered, pre-election or post-election arrangements in the democratic world.

It is time to put electoral shenanigans behind and get on with the task of governance.

This article was first appeared in The Star on 8 October 2020

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