• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
Appointment and Dismissal of Chief Ministers in Sabah
The Kitingan Cases
 By Hardial Singh Khaira LL.B(Hons)(U.Malaya); LL.M(U.W.Australia) Honorary Research Fellow, Murdoch University
[This is a follow up to two earlier articles
Dismissal of Chief Minister: Stephen Kalong Ningkan (No.1): A Brief Analysis.
http://www.scribd.com/doc/14582045/Dismissal-of-Chief-Minister-Ningkan1
 
The Use of Emergency Powers to Dismiss a Chief Minister - Stephen Kalong Ningkan No.2.
http://www.scribd.com/doc/14758514/Stephen-Kalong-Ningkan-No-2-Use-of-Emergency-Powers
 
]
Sabah has experienced more than its fair share of constitutional predicaments. Soon afterthe formation of Malaysia and as early as 1964 there was a potential constitutional crisisbrewing in Sabah over the appointment of the first non-expatriate State Secretary. It wasresolved by the intervention of the then Prime Minister, Tengku Abdul Rahman. The firstfull blown constitutional crisis that had to have a judicial resolution came about in 1985.
 Kitingan Case No.1
1
 
The results of the State general election that year were that Parti Bersatu Sabah, headed byDatuk Joseph Pairin Kitingan, secured twenty-six (26) seats whilst the coalition of theUnited Sabah National Organisation and Parti Berjaya led by Tun Datu Mustapha had atotal of twenty-two (22) seats. The number of elected seats in the Sabah State Assemblywas forty-eight (48) but there was also provision for six (6) nominated members to beappointed that brought the total number of seats in the Assembly to fifty-four (54). Atabout 5.30 a.m. on 22 April 1985, Tun Datu Mustapha, although only commanding twenty-two of the elected seats and in the minority, took an oath of the Chief Minister for the Stateof Sabah before the Yang di-Pertua Negeri Tun Datuk Adnan Robert. There were alsoapparently six instruments of appointment of nominated members (who were aligned withTun Datu Mustapha) that had been signed by the Yang di-Pertua Negeri. The additionalsix nominated members purportedly gave the coalition led by Tun Datu Mustapha a total of twenty-eight out of the fifty-four seats in the Assembly, thereby securing an ostensiblemajority. The Yang di-Pertua Negeri in his evidence in the cases however stated that hehad not willingly or voluntarily signed these instruments. On the same day, the Yang di-Pertua Negeri revoked the appointment of Tun Datu Mustapha as the Chief Minister and atabout 8.00 p.m. he instead appointed Datuk Joseph Pairin Kitingan, the leader who had themajority of the
elected 
members as the Chief Minister.
1
 
Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha Bin Datu Harun; Datuk Joseph Pairin Kitingan v Tun Datu Haji  Mustapha Bin Datu Harun 
[1987] 1 MLJ 471 decided on 21 October 1985 but only reported in 1987..
 
 Tun Datu Mustapha in these cases applied to the court for declarations that his appointmentas the Chief Minister of Sabah by the Yang di-Pertua Negri was valid and that thesubsequent revocation of his appointment and the appointment of Datuk Pairin Kitingan asthe Chief Minister was
ultra vires
and therefore null and void.
 Preliminary objections
1.
 
That the Court had no jurisdiction to hear and grant the declaratory reliefs sought inthe action.
It was argued that if the acts of the Yang di-Pertua Negri were to be made justiciable it would open the floodgates to every official act of the Head of State beingquestioned and it would therefore reduce his high status to that of an ordinary citizen.Tan Chiaw Thong J found that both the issues of dismissal and appointment of theChief Minister involved legal and constitutional issues and
not just the discretion
of theYang di-Pertua Negeri and were therefore justiciable and within the jurisdiction of theCourt.2.
 
Once the Legislative Assembly had dealt with the appointment of the Chief Minister (who then commanded the confidence of the majority of members), the Court could not interfere directly or indirectly with his position.
This was rejected by Tan ChiawThong J who ruled that the Legislative Assembly ‘must necessarily be confined tomatters within its constitutional and legal powers and functions’.
2
The LegislativeAssembly had no authority to appoint the Chief Minister, which fell exclusively withinthe powers and function of the Head of State. It was obvious to him that, under theState Constitution, the matters of ‘appointment’ and that of ‘confidence of theLegislative Assembly’ were separate and distinct as it was for the Head of State toappoint the Chief Minister, with which function the Legislative Assembly was notconstitutionally concerned. Whether the Chief Minister subsequently commanded theconfidence of the majority of the members of the Legislative Assembly, was for themembers of the Legislative Assembly to decide.
3
 The appellants appealed against the ruling of Justice Tan Chiaw Thong. The SupremeCourt
4
endorsed the rulings made by Tan Chiaw Thong J and decided that justiciable issuesdid in fact arise for judicial determination in the case and the matter fell within the jurisdiction of the court for adjudication.
2
 
Ibid 
, at p. 475
3
 
Ibid 
, at p. 483
4
 
Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha Bin Datu Harun; Datuk Joseph Pairin Kitingan v Tun Datu Haji  Mustapha Bin Datu Harun 
[1987] 1 MLJ 471. Decided on 21 October 1985.
 
 Kitingan Case No.2
5
 
After the preliminary objections and appeal had been dealt with, Tan Chiaw Thong J had todeal with the issues of the case before him. He identified a number of issues that had to beconsidered.
 a)
 
 Appointment of the Chief Minister
Tan Chiaw Thong J found on the evidence that, in the swearing in of Tun DatuMustapha, the Yang di-Pertua Negri had
not exercised his judgment 
under theConstitution, in that:
•
 
Contrary to what he was required to do under
 Article 6(3)
of the SabahConstitution, he did not take into account the actual number of elected seatswon by Parti Bersatu Sabah that clearly had the majority in the LegislativeAssembly; and
•
 
It was made solely as a result of the pressure and threats made.Tan Chiaw Thong J was careful to make the distinction between the situation where theevidence disclosed that
no judgment 
had been made under
 Article 6(3)
of theConstitution by the Yang di-Pertua Negeri and where evidence showed that a
 judgment had been made
. In the latter case based on the legal authorities he considered that thematter would not be reviewable.
6
He found on the facts that by swearing in Tun DatuMustapha, the Yang di-Pertua Negeri had in fact exercised his power not for preservingdemocracy but for destroying it.
7
He concluded that the swearing in of Tun DatuMustapha was null and void and had no legal effect as the Yang di-Pertua Negeri made
no judgment 
under
 Article 6(3).
 
 b)
 
Vote of Confidence in the Appointment of a Chief Minister
It was also submitted that the words
‘…is likely to command the confidence of amajority of the members of Assembly
’, in
 Article 6(3)
referred to and meant a majorityof the members of the Assembly actually sitting and voting. Tan Chiaw Thong Jhowever said that it has nothing to do with the powers and functions of the LegislativeAssembly and the Head of State was not expected to foresee how the Assembly maypass a vote of confidence and was only required by
 Article 6(3)
to make his
own judgment 
on the material which he considered relevant to take into account, subject toconsiderations which were not unconstitutional.
8
The Head of State was not concerned
5
 
Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2)
[1986] 2 MLJ 420 decided on 15 April 1986.
6
 
Ibid 
, at p. 448
7
 
Supra,
at p. 449
8
 
Ibid 
, at p. 471
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...