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SLS: Perak MB case remains binding precedent for now; more facts needed

16th May, 2018

KOTA KINABALU: In an analysis based on the available facts leading up to the current situation of Sabah’s two chief ministers and a previous case in Perak, the Sabah Law Society (SLS) has stated that unless the Federal Court authority (the Perak authority) can be distinguished on either the facts or law which is a matter for the judiciary in Sabah to determine, the Perak Menteri Besar case remains a binding precedent.

Brenndon Keith Soh, President of SLS in a statement on Tuesday said 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. 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.”

Existing media commentary on these two Articles have been primarily centered on the Dato’ Seri Ir. Hj. Mohammad Nizar bin Jamaluddin vs. Dato’ Seri Dr. Zambry bin Abdul Kadir, the 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.

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.

In the event that there is a legal challenge to determine the legitimacy of the respective appointments of the Chief Minister of Sabah, the interpretation of Articles 6 (3) and Article 7 (1) of the State Constitution would be canvassed again before the judiciary in 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.

SLS is an apolitical professional body and therefore does not lean in favour of any particular political party’s side. 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. This statutory intent of the SLS is 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.

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