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ON September 26, 2020, Malaysians in Sabah went to the 16th state polls and the official results as announced by the Election Commission were as follows:
On September 29, 2020, Datuk Seri Hajiji Noor, the elected representative for Sulaman was sworn in as the 16th chief minister of Sabah by Tun Juhar Mahiruddin, the head of state (TYT).
It is appropriate to look at Article 6(3) of the Sabah state constitution which provides:
“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 members of the Assembly …”
Now, Article 6(3) is not a standalone provision as it must be read together with Article 6(7) which provides:
“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.”
The official version of Article 6(7) in the Malay language is even clearer:
“Bagi maksud fasal (3) Perkara ini, dimana suatu parti politik telah menang majoriti kerusi-kerusi Dewan Undangan yang dipilih dalam suatu pilihanraya umum, ketua parti politik tersebut yang adalah ahli Dewan Undangan, hendaklah menjadi ahli Dewan Undangan yang mungkin mendapat kepercayaan majoriti ahli Dewan.”
From the official results issued by the Elections Commission, Parti Warisan Sabah – which included six candidates from DAP, two from PKR, and one from Upko which contested and won under the Warisan logo and watikah – clearly won with 32 seats in the general election, with Datuk Seri Shafie Apdal being elected as Senallang representative and Warisan president becoming the leader of the political party which was likely to command a majority of the legislative assembly’s confidence pursuant to Article 6(7).
Hence, it is submitted that Hajiji’s appointment as the 16th Sabah chief minister on September 29, 2020, contravened Article 6(3) read together with Article 6(7) and is therefore impugned for being unconstitutional based on the following reasons:
1. Hajiji’s political party i.e. Perikatan Nasional (under which he contested) only managed to secure 17 seats compared to Parti Warisan Sabah’s 32 seats.
2. The leader of both Parti Pribumi Bersatu Malaysia and Perikatan Nasional is Muhyiddin Yassin.
It is unambiguous that the impugned appointment of Hajiji was legally wrong when Shafie and his political party explicitly fulfilled the constitutional requirements of Article 6(3) and Article 6(7), respectively, to be legitimately qualified for swearing in as the 16th Sabah chief minister.
On December 10, 2022, Hajiji used a Gabungan Rakyat Sabah (GRS) letterhead to issue a statement to announce his departure from Bersatu and consequently Perikatan Nasional, and to subsequently use GRS as a platform for future political purposes. However, GRS was never a member of either Bersatu or Perikatan Nasional,
Is Hajiji’s position as Sabah chief minister still tenable?
Even if Hajiji is the leader of a new coalition party called GRS which was registered in 2022, it is an incontrovertible fact that GRS never contested the 16th Sabah elections on September 26, 2020. It also did not win any seats under its own logo, meaning that Hajiji’s already impugned position as the 16th chief minister is also caught for the second time by the provisions of Article 6(3) and Article 6(7).
It is submitted that the answer to this question can be found in the legal maxim “Quod ab initio non valet, in tractu temporis non convalescit” which means “What is not valid in the beginning does not become valid by time”.
Can an unconstitutional appointment be remedied?
Again, it is submitted that the answer is negative because “politics are to be adapted to the laws and not the laws to politics” or in Latin “Politiae legibus non leges politiis adaptandae”.
It is implored upon the present Sabah TYT to revoke Hajiji’s impugned appointment as chief minister as void ab initio or having no legal effect like what former and late TYT Adnan Robert did to Datu Mustapha Datu Harun after the 1985 Sabah elections saga. – The Vibes, January 1, 2023
Jeremiah Yee is a Sabahan and a legally-trained political economist. He is also a barrister-at-law (Middle Temple), and is now semi-retired with 43 years of experience in law, 44 years in economics and 41 years in political economics. He has a master’s degree in Economics, a master’s in Endogenous and Exogenous Economics, and a PhD in Political Economics from the University of Edinburgh