Who is qualified to be the Chief Minister of Sabah?

For the answer, you need to respond to two questions: (Q-1): Which single party has the most seats in the Legislative Assembly of Sabah? (Q-2): Who is the leader of that party? He is the one the Yang di-Pertua (‘the Governor’) should appoint as CM.  In this, the Governor has no choice. So, who do you think satisfies these conditions? You are right!

[1].    Why is that?

Because that is what the Constitution of the State of Sabah stipulates.

[2].    Article 6(3):

Article 6(3) of the Constitution of the State of Sabah is the logical starting point. It states:

‘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.’

[3].    You might think that …

The phrase ‘who in his judgement is likely to command the confidence of a majority of the members of the Assembly’ would have given you the impression that ‘a majority’ must mean – as all the local newspapers are telling you – more than 50% of the members of the State Legislative Assembly.

This must mean, you might think, that to be a Chief Minister, a qualifying candidate must have four things going for him or her:

(1).     at least 37 State Legislative Members must support his nomination (for 37 out of a total of 73 seats, is the simple majority);

(2).     that the Governor must believe that the candidate is ‘likely’ to command the support of 37 or more members of the Assembly;

(3).     that the candidate must himself be an elected member of the Legislative Assembly; and

(4).     that the Governor has a complete and unfettered ‘discretion’ in appointing a CM: because Article 10(2) of the Constitution says so.

Take this last condition one step further:

Suppose Mr. A, a member of the Legislative Assembly,  can prove he enjoys the support of at least 37 members of the Assembly.

And suppose the Governor feels – although this is not a proven fact – that Mr A. is likely to have deserters in his camp: yet, to the Governor, that appears to be ‘likely’.

And suppose the Governor feels that Mr. B is ‘likely’ to command the support of the ‘majority of the members of the Assembly’.

If so, it would appear that the Governor can choose Mr. B over Mr. A.

That is not quite so.

[4].    The Strange Riddle that is Sabah

There is final clause to Article 6; and it sits quietly, right at at the end of Article 6.

And it  has an odd effect. It limits those 4 conditions we discussed earlier, and turns them on its head.

It is a riddle.

And this riddle, for some strange reason, exists only in Sabah.

[5].    The twist in Article 6(7)

That ‘twist’ is housed in Article 6(7). It stipulates:

‘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.’

Isn’t that strange?

In law this is called a ‘deeming’ provision.

Suppose a law says that for ‘X’ to exist, it is enough to prove that ‘Y’ exists.

If it can be proven that ‘Y’ exists, then one must accept that, in law, ‘X’ exists.

That is exactly what Article 6(7) does.

[6].    The 4 Conditions that Art. 6(7) requires a ‘CM candidate’ to satisfy

The Sabah State Constitution prescribes that before a person can be appointed as a Chief Minister of Sabah, he has to satisfy four conditions.

First, he should be a member of the Legislative Assembly of Sabah.

Second, the candidate should be ‘the leader’ of ‘a political party’.

Third, that ‘political party’ must have ‘won a majority of the elected seats’ of the Legislative Assembly.

Note the letter, and pronoun, ‘a’ in the phrase, ‘a political party’.

Now the Sabah Constitution does not speak of ‘the Party’.

It does not refer to the plural phrase, ‘the parties’.

It does not say, ‘a collection of parties’.

The Sabah Constitution is specific.

It points unerringly, to a party’: a single party.

But that is not quite enough.

That ‘party’ should have won ‘a majority of the elected seats’.

This lack of ambiguity is quite deliberate. It is designed to cut down the larger concepts in Art 6(3).

So which party had won the single most number of elected seats?

You are right!

[7].    The Fourth Point concerns this question:

What is the meaning of the word, ‘majority’?

‘Majority’ does not mean, in plain English, ‘more than 50%’.1Although that is what the Black’s Law Dictionary says in its 7th Ed., at p. 966(Bryan A. Garner)

It is a simple English word, and it must be given its plain meaning.

In law, the courts, using the ‘linguistic canons of construction’, will give an ordinary meaning to an ordinary word.2Bennion on Statutory Interpretation, 5 Ed. p. 1182

Where the legislature has used a plain word, the judges are not expected to  ‘rush to the dictionaries’3(ibid): DPP v. Smith (Michael Ross) [2006] 2 All ER 16, at p. 15

Yet even if one were to rush to a dictionary, in plain English, the lexical meaning of the word ‘majority’ means, quite simply, ‘the greater number’.4Shorter Oxford English Dictionary, Guild Publishing, London, p. 1262

[8].    So let us apply this to an example

You already know that the total number of elected seats in the Legislative Assembly of Sabah is 73.

Now suppose there are a total of six (6) parties which had contested in the September 2020 Sabah State Elections.

Suppose these are Parties ‘A’ through ‘F’.

Suppose Party-A has won 13 seats.

And suppose all the other parties have 12 seats each.

That makes a total of 73 seats.

So, if we use the plain and ordinary meaning of the word ‘a majority’ – which means ‘the greater number’, which party do you think has a ‘majority’ of the seats?

It cannot be any one of the parties B through F.

You are right: the only party that has a ‘greater number’, is Party ‘A’.

[9].    So does the Governor have a discretion in the selection of a CM?

Unfortunately, any discretion that the Governor appears to have in Article 10(2) is completely wiped out by the express words in Article 6(7).

There is an arithmetic  formula in Article 6(7).

The Governor cannot ignore, or depart from it.

He has no choice in this matter.

He has, in law, no ‘discretion’ in whom he appoints as the CM.

[10].   So what is the current standing of the parties after the 2020 Sabah Elections?

See for yourself: here are a the results.

Warisan:    29 seats

PN:              17 seats

BN:              14 seats

PBS:            7 seats

Indep:         3 seats

PKR:            2 seats

UPKO:         1 seat

So the single political party with ‘a majority’ – which means ‘the greater number’ –  of the elected seats, is Warisan.

[11].   So who is the leader of  Warisan?

You know the answer to that.

[12].   So what happens if someone else, outside the Art 6(7) formula, is appointed?

Well, that decision is liable to be challenged in the courts.

This should be interesting…

 

 

[The author expresses his gratitude to Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran and Ms  Amuthambigai Tharmarajah for their assistance]

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