Sabah - The Kitingan Cases

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.pdfcoke.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.pdfcoke.com/doc/14758514/Stephen-Kalong-Ningkan-No-2-Use-ofEmergency-Powers] Sabah has experienced more than its fair share of constitutional predicaments. Soon after the formation of Malaysia and as early as 1964 there was a potential constitutional crisis brewing in Sabah over the appointment of the first non-expatriate State Secretary. It was resolved by the intervention of the then Prime Minister, Tengku Abdul Rahman. The first full blown constitutional crisis that had to have a judicial resolution came about in 1985. Kitingan Case No.11 The results of the State general election that year were that Parti Bersatu Sabah, headed by Datuk Joseph Pairin Kitingan, secured twenty-six (26) seats whilst the coalition of the United Sabah National Organisation and Parti Berjaya led by Tun Datu Mustapha had a total of twenty-two (22) seats. The number of elected seats in the Sabah State Assembly was forty-eight (48) but there was also provision for six (6) nominated members to be appointed that brought the total number of seats in the Assembly to fifty-four (54). At about 5.30 a.m. on 22 April 1985, Tun Datu Mustapha, although only commanding twentytwo of the elected seats and in the minority, took an oath of the Chief Minister for the State of Sabah before the Yang di-Pertua Negeri Tun Datuk Adnan Robert. There were also apparently six instruments of appointment of nominated members (who were aligned with Tun Datu Mustapha) that had been signed by the Yang di-Pertua Negeri. The additional six 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 ostensible majority. The Yang di-Pertua Negeri in his evidence in the cases however stated that he had not willingly or voluntarily signed these instruments. On the same day, the Yang diPertua Negeri revoked the appointment of Tun Datu Mustapha as the Chief Minister and at about 8.00 p.m. he instead appointed Datuk Joseph Pairin Kitingan, the leader who had the majority 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 appointment as the Chief Minister of Sabah by the Yang di-Pertua Negri was valid and that the subsequent revocation of his appointment and the appointment of Datuk Pairin Kitingan as the 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 in the 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 being questioned 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 the Chief Minister involved legal and constitutional issues and not just the discretion of the Yang di-Pertua Negeri and were therefore justiciable and within the jurisdiction of the Court. 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 Chiaw Thong J who ruled that the Legislative Assembly ‘must necessarily be confined to matters within its constitutional and legal powers and functions’.2 The Legislative Assembly had no authority to appoint the Chief Minister, which fell exclusively within the powers and function of the Head of State. It was obvious to him that, under the State Constitution, the matters of ‘appointment’ and that of ‘confidence of the Legislative Assembly’ were separate and distinct as it was for the Head of State to appoint the Chief Minister, with which function the Legislative Assembly was not constitutionally concerned. Whether the Chief Minister subsequently commanded the confidence of the majority of the members of the Legislative Assembly, was for the members of the Legislative Assembly to decide.3 The appellants appealed against the ruling of Justice Tan Chiaw Thong. The Supreme Court4 endorsed the rulings made by Tan Chiaw Thong J and decided that justiciable issues did 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.25 After the preliminary objections and appeal had been dealt with, Tan Chiaw Thong J had to deal with the issues of the case before him. He identified a number of issues that had to be considered. a) Appointment of the Chief Minister Tan Chiaw Thong J found on the evidence that, in the swearing in of Tun Datu Mustapha, the Yang di-Pertua Negri had not exercised his judgment under the Constitution, in that:

• Contrary to what he was required to do under Article 6(3) of the Sabah Constitution, he did not take into account the actual number of elected seats won by Parti Bersatu Sabah that clearly had the majority in the Legislative Assembly; 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 the evidence disclosed that no judgment had been made under Article 6(3) of the Constitution 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 the matter would not be reviewable.6 He found on the facts that by swearing in Tun Datu Mustapha, the Yang di-Pertua Negeri had in fact exercised his power not for preserving democracy but for destroying it.7 He concluded that the swearing in of Tun Datu Mustapha 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 a majority of the members of Assembly’, in Article 6(3) referred to and meant a majority of the members of the Assembly actually sitting and voting. Tan Chiaw Thong J however said that it has nothing to do with the powers and functions of the Legislative Assembly and the Head of State was not expected to foresee how the Assembly may pass 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 to considerations 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

with predicting how members of the Legislative Assembly would vote on his choice of Chief Minister, since this would indicate that an assessment as to how the Legislative Assembly would view his judgment is an influencing factor to be taken into account.9 c) Nominated Members Another significant issue the Court had to consider was whether ‘members’ of the Assembly could include nominated members as well. The reason this issue arose was that Tun Datu Mustapha contended that, although his coalition had only won twentytwo (22) seats compare with that of Joseph Kitingan’s party’s twenty-six (26), he had managed to get the Yang di-Pertua Negeri to appoint six (6) nominated members aligned to him and therefore enjoyed a ‘majority’ in the Assembly. The argument that ‘members’ in Article 6(3) should include nominated members did not find favour with Justice Tan Chiaw Thong because ‘at the time when the Head of State is to make his judgment, no nominated member is yet in existence, nor can they constitutionally come into existence… (and) the majority who is elected by the electorate should form the government, and is the government of their choice.’ To hold otherwise would mean that the will of the electorate, expressed through the ballot box, would be frustrated and was not intended by the Constitution. The Constitution therefore did not permit the use of nominated members to inflate the seats of a party with a minority of elected seats in order to obtain a majority. Their appointment could only be constitutionally made after a Cabinet had been formed, and that constitutionally, could only happen after the appointment of a Chief Minister had been made. Therefore, the Yang di-Pertau Negeri could not constitutionally take into account any nominated member for the purpose of making his judgment in the choice of a Chief Minister. 10 d) Signed and Sealed Instrument of Appointment On whether the Constitution required a signed and sealed instrument of appointment Tan Chiaw Thong J ruled that, despite the absence of an express provision in the Constitution, in his view, the ‘decision of the Head of State in appointing a Chief Minister has to be signified in some way, and, …under the Constitution, this takes the form of a signed and sealed instrument of appointment, which also accords with established tradition and usage in Sabah since Malaysia Day. The instrument of appointment expresses in a formal manner the judgment of the Head of State that the person appointed has the confidence of the majority of members of the Legislative Assembly. It also evidences and signifies the finality of his choice.’11 The absence of this instrument of appointment would prove fatal for Tun Datu Mustapha.

9

Ibid, at p. 472

10

Ibid, at pp. 472-473

11

Ibid, at p.463

e) The Oath of Office It was however argued by Tun Datu Mustapha that the taking of the oath was sufficient to constitute a valid and complete appointment and that the letter of appointment was therefore not required.12 Tan Chiaw Thong J dismissed that argument when he firmly stated that the wording of Article 8 of the Constitution was plain and clear in that it stipulated that ‘Before a member of the Cabinet exercises the functions of his office he shall take and subscribe in the presence of the Yang Di-Pertua Negeri the oath set out in Part II of the Schedule’ to the Constitution and that could only admit one interpretation. It was that the taking of the prescribed oath was required of a member of the Cabinet only after his appointment, and before he exercised any of the functions of his office. He therefore found that the taking of the oath by Tun Datu Mustapha without a signed and sealed instrument of appointment did not suffice to constitute an appointment made under Article 6(3) of the Constitution and there was therefore no valid appointment of Tun Datu Mustapha as the Chief Minister.13 f) Dismissal of Chief Minister On the issue of the dismissal of a Chief Minister Tan Chiaw Thong J endorsed the views of Harley Ag. CJ in Stephen Kalong Ningkan No.1 (1966) that the dismissal of a legally appointed Chief Minister could only be done in accordance with Article 7(1) of the Constitution after a vote of no confidence had been taken against him in the Legislative Assembly.14 There was also some argument before Justice Tan Chiaw Thong that there is a difference between a Chief Minister being ‘dismissed’ and his appointment being ‘revoked’. He did not accept this distinction ruling that he saw no difference.15 Tan Chiaw Thong J also did not accept the argument that Article 7 should be construed to mean that the Head of State could revoke the appointment of or dismiss a Chief Minister before the Chief Minister has had the approval of the majority of members of the Legislative Assembly. He regarded this view as contrary to the intention of the Constitution that, after his appointment, the Chief Minister has the legal constitutional right to go to the Legislative Assembly, to be tested whether he in fact commands the confidence of the majority members thereof.16 Therefore, any attempt to revoke his appointment before he has had the opportunity to exercise that right, was in his opinion, contrary to the constitutional intention and not permitted by the Constitution. The Constitution, he said, did not intend that any power of dismissal should be given to the Head of State as otherwise it would have expressly said so, as it does in the case of members of the Cabinet other than the Chief Minister. It was therefore not proper to imply that there was a power to dismiss a Chief Minister or to revoke his appointment. 12

Ibid, at p.464

13

Ibid

14

Ibid, at p. 459

15

Ibid, at p. 466

16

Ibid, at p. 467

Kitingan Case No.317 The Kitingan saga continued in 1994. In that year’s February State elections Datuk Pairin Kitingan’s Parti Bersatu Sabah (PBS) won twenty-five seats while the coalition Barisan Nasional (BN) won twenty-three seats. Datuk Pairin Kitingan was duly appointed and sworn in as the Chief Minister of Sabah by the Yang di-Pertua Negeri on 21 February 1994. Acting on the advice of the Chief Minsiter the Yang di-Pertua Negeri appointed the rest of the Cabinet in accordance with Article 6(3) of the Constitution. Under Article 14(1)(c) of the Constitution, six nominated members were also appointed to the Sabah Legislative Assembly. The plaintiff was appointed as the Deputy Chief Minister and Minister of Agriculture and Fisheries. On 13 March 1994, when three assemblymen from the PBS defected to the BN, Datuk Pairin Kitingan requested the Yang di-Pertua Negeri to dissolve Legislative Assembly so as to call for a fresh mandate from the people. However, the consent to his request was withheld by the Yang di-Pertua Negeri. On 17 March 1994, Datuk Pairin Kitingan tendered his resignation as the Chief Minister of Sabah but did not tender the resignation of the other members of his Cabinet and neither did they do the same. Their appointments were never revoked by the Yang di-Pertua Negeri. On the same day, the Yang di-Pertua Negeri appointed the second defendant as the new Chief Minister. On 24 March 1994, the Yang di-Pertua Negeri on the advice of the second defendant, appointed the third to ninth defendants as other members of the Cabinet of the second defendant. He also relied on a petition signed by thirty (30) of the assemblymen outside the Legislative Assembly. a) Non-justiciable Power It was not seriously disputed that the Yang di-Pertua Negeri had a discretionary power under Article 10(2) of the Sabah State Constitution to either accede to a request to dissolve the Legislative Assembly or to withhold consent to such a request. Abdul Kadir Sulaiman J ruled that this power to withhold the consent was a power exercisable personally according to the Yang di-Pertua Negeri’s subjective judgment, and, was therefore non-justiciable.18 b) Loss of Confidence Datuk Pairin Kitingan accepted that the petition showed that the BN had the support of the majority of the members of the Legislative Assembly. He therefore felt obliged under constitutional convention to tender his resignation as the Chief Minister. In the 17

Datuk (Datu) Amir Kahar Bin Tun Datu Haji Mustapha v Tun Mohd Said Bin Keruak Yang Di-Pertua Negeri Sabah & Ors [1995] 1 MLJ 169

18

Ibid, at p.181

case of Stephen Kalong Ningkan No.1 (1966) Harley Ag. CJ had ruled that there was a vital difference between the word ‘support’ and ‘confidence’. Abdul Kadir Sulaiman J departed from that ruling noting that although Datuk Pairin Kitingan had no doubt used the word ‘support’ as opposed to the term ‘confidence’, that appears in Article 7(1), it did not make any material difference. The critical issue the High Court of Borneo had to consider was if the resignation of Datuk Pairin Kitingan also affected the other members of his Cabinet as he had not tendered their resignation. Abdul Kadir Sulaiman J was of the view that the resignation of Datuk Pairin Kitingan was also a resignation of the whole of his Cabinet. This was because the intention behind the requirement in Article 7(1) for a Chief Minister to tender the resignation of the members of the Cabinet was to enable a new Cabinet to be formed pursuant to Article 6 of the Constitution. He further reasoned that Article 7(1) envisaged a mandatory situation where, if the Chief Minister ceased to command the confidence of the majority of the members of the Legislative Assembly then, if the Assembly was not dissolved, the Cabinet shall be dissolved, thus opening the way for a new Chief Minister and Cabinet to be formed. 19 Importantly, Abdul Kadir Sulaiman J made a statement that suggests that if the Chief Minister loses the confidence of the majority of the members of the Assembly and ‘refuses or does not tender the resignation of the members of the Cabinet which includes himself, or if he tenders the resignation of himself alone, the fact remains that the Cabinet is dissolved on account of him losing the confidence of a majority of the members of the Assembly and it is not necessary, therefore, for the Yang di-Pertua Negeri as a last resort to remove the Chief Minister and the other members of his Cabinet.’20 He was therefore of the opinion that ‘once a Chief Minister in fact knows that he has lost the confidence of a majority of the members of the Assembly, he should not wait for a vote of confidence to be formally tabled in the Assembly but should immediately take the honourable way out by tendering the resignation of his Cabinet.’21 Abdul Kadir Sulaiman J was again prepared to depart from the ruling of Harley Ag. CJ in Stephen Kalong Ningkan No.1, that a vote of confidence could only be taken in the Assembly to determine ‘loss of confidence’. He said it was possible to determine this from the surrounding circumstances, through the knowledge of the Chief Minister himself, or, through the actual voting in the Assembly by its members. The State Constitution did not state that the only evidence of ‘loss of confidence’ had to be through an actual vote in the Assembly.22

19

Ibid.

20

Ibid.

21

Ibid.

22

Ibid, at p. 184 & 188

c) Dissolution of Cabinet on Resignation of Chief Minister It was argued that since the Chief Minister had not tendered the resignation of the rest of his cabinet when he resigned the Yang di-Pertua Negeri must first revoke the appointment of the other members of Datuk Pairin Kitingan's Cabinet before any new appointments could be made. In order to do that, the new Chief Minister, ought to have advised the Yang di-Pertua Negeri to dissolve the previous Cabinet, which he never did. It is stated in Article 7(2), the Yang di-Pertua Negeri may revoke the appointment of a member of the Cabinet other than the Chief Minister acting in accordance with the advice of the Chief Minister. However, Justice Abdul Kadir Sulaiman noted that there had been precedents in Sabah where, after the resignation of a Chief Minister, the appointments of the existing members of the cabinet were deemed to be revoked and they had to be reappointed.23 •

When Dato' Peter Lo Su Yin was appointed the Chief Minister on 1 January 1965 upon the resignation of the then Chief Minister, Dato' Donald Stephens, the members of the whole Cabinet had to be reappointed by the Yang di-Pertua Negeri in accordance with the advice of Dato' Peter Lo Su Yin.

•

When Tun Datuk Hj Mohd Fuad Stephens together with three of his Cabinet Ministers died in a plane crash on 6 June 1967, Datuk Harris bin Mohd Salleh was appointed and sworn in as the new Chief Minister on the same day. The remaining four Ministers of the previous Cabinet were reappointed and sworn in.

Abdul Kadir Sulaiman J held that the purpose for the reappointments into a new Cabinet in the instances above was because they were all deemed to have vacated their offices. Therefore, upon the death or resignation of the Chief Minister, the Cabinet stands dissolved and the appointments of all its members are deemed to have been vacated. If any of those members were to continue to be in the new Cabinet they had to be reappointed upon the advice of the new Chief Minister.24 He therefore concluded, that on the acceptance of the resignation, the whole Cabinet of Datuk Pairin Kitingan simply collapsed.25 d) Gap between Dissolution and Formation of Cabinet It was also argued that there could not be a gap between the purported dissolution on 17 March 1994 of the Cabinet formed on 21 February 1994, and the formation of a new Cabinet on 24 March 1994 as it was a period that was illegal and unconstitutional.26 Abdul Kadir Sulaiman J concluded that 23

Ibid, at p. 189

24

Ibid, at p. 190

25

Ibid, at pp. 184 & 188

26

Ibid, at p. 191

it is not intended to mean that there must be at all times a Cabinet in existence, otherwise it would be unconstitutional. What it means is that there must be a Cabinet to advise the head of state, for the head of state cannot dispense with this body if he is to exercise his constitutional functions. In other words, if no such body is in existence, the head of state is handicapped in exercising his 27 constitutional function.

Therefore, the gap created by having no Cabinet in existence between 17 March 1994 and 24 March 1994 was ruled as merely hampering the exercise of the executive functions of the Yang di-Pertua Negeri where those functions (by the Constitution) required the advice of the Cabinet. For the reasons and circumstances stated above the plaintiff’s case was dismissed. The increased importance of the Sabah and Sarawak constitutional crisis cases now no doubt lies in the fact that the judicial resolution of the current Perak constitutional crisis will inevitably mean the revisiting of the findings in these cases.

27

Ibid, at p. 192