Monday, May 11, 2009

Perak Constitutional Crisis - A Structural Overview and Objective Analysis

Finally, a judicial ruling has been made on who is the legitimate Menteri Besar of Perak. It is a ruling that is consistent with the decided legal authorities in Malaysia as have been discussed in my previous postings. The actual grounds of judgment and legal reasons are (at the time of the posting) not yet available. I have however analysed the cases pertaining to the dismissal of Chief Ministers before the ruling at and offered, what I believe, are the legal solutions available to the courts. Many opinions have been offered on the Perak constitutional crisis but it is important to objectively consider the legal authorities devoid of any political orientations or inclinations. The ruling may not bring an end to the crisis as the Barisan Nasional is already considering an appeal.

The words of Harley Ag. CJ in Stephen Kalong Ningkan No.1 should be heeded ‘(t)hat political solution may well be the only way to avoid a multiplicity of legal complications. Possibly all parties, and the people of this nation, in whom sovereignty is supposed to lie, will wish the same solution.’

Tuesday, May 5, 2009

Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases

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. Three cases involving Datuk Pairin Kitingan were considered by the Malaysian courts. 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.

Kitingan Case 1985

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 twenty-two 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. On the same day, the Yang di-Pertua 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.

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. In the end the courts validated the appointment of Datuk Pairin Kitingan. The High Court decided that Tun Datu Mustapha had been unconstitutionally sworn in and his appointment was null and void. The Court came to this conclusion on the grounds, inter alia, that there was no instrument appointing him as the Chief Minister; in deciding which party had the majority in the Legislative Assembly the Yang di-Pertua Negeri could only consider the elected members of the Assembly and not include the nominated members; and, the taking of the oath was insufficient to constitute a valid and complete appointment.

On the dismissal of a Chief Minister the Court opined that there was no difference between a Chief Minister being ‘dismissed’ and his appointment being ‘revoked’; Article 7 of the Sabah State Constitution could not 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; and, the State Constitution 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.

Kitingan Case 1994

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.

The High Court in this case ruled that:

  • The Yang di-Pertua Negeri had a discretionary power under Article 10(2) of the Sabah State Constitution to withhold the consent to dissolve the Legislative Assembly and this power was exercisable personally according to the Yang di-Pertua Negeri’s subjective judgment, and, was therefore non-justiciable.
  • The resignation of Datuk Pairin Kitingan also affected the other members of his Cabinet even though he had not tendered their resignation. Abdul Kadir Sulaiman J was of the view 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… (and) 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.’
  • It was not necessary that a vote of confidence could only be taken in the Assembly to determine ‘loss of confidence’ as it could also be ascertained from the surrounding circumstances and through the knowledge of the Chief Minister himself.
  • Once the Chief Minister resigned from his position the rest of the Cabinet must also be deemed to have been dissolved.
For details, see article:

Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases