Was it legally and morally right?

BY SELVARAJA SOMIAH

The question is not just whether it is legally right because even legally it is highly questionable.

Just because the 3 Appeal Court Judges accepted the Preliminary Objection (PO) does not mean they are right. Simply because, according to the lawyer on the other side, they were not given a chance to explain why it is illegal for a Chief Minister to be dismissed by the TYT within 48 hours of appointing him, when the Constitution states that only the Assembly can unseat a CM by Vote of Confidence.

As the Federal Constitution now stands, the Agong cannot arbitrarily dismiss the PM. Neither can any Menteri Besar be dismissed by the respective Sultans without undergoing the due process as laid out in their respective Constitution.

In the case of Sabah, following the May 9th GE14 and almost 48 hours after the election results were announced, and despite the eventual winner who had 29 seats and commanded a simple majority, with and addition of 2 more seats, had the rug pulled out from under his feet despite having been sworn in.

After unexplained lengthy delay, a swearing-in was promised at 8pm, until 11pm Musa was kept waiting to be sworn in. Almost 24 hours after results were announced, and that within 10 hours the next day he was asked to return the Appointment Letter. This lead many people to believe that horsetrading was going on. Which was confirmed when Upko Assemblymen frogged to Warisan side. At the time of the appointment of the CM this was not the case and he was sworn-in, so why did he have to lose his job after being sworn-in? With the new victors, resorting to Statutory Declaration (SD) rather than people’s vote, which is more important.

Similarly, the Prime Minister was made to wait several hours by the previous Agong after PH victory and that he too complained loudly that this should not have happened as people have spoken. In his case, the previous Agong apparently was abroad.

So, if this was unacceptable to the PM, what happened on the 9th May 2018 be acceptable to Sabahans? Fortunately, in the case of the PM, no Pakatan members frogged-over to BN to deny Dr Mahathir and Pakatan Harapan a victory. Perhaps it was due to the margin of seats being wide unlike in the Sabah case. Nevertheless, an unacceptable delay was allowed to happen with the PM being appointed but in Sabah a CM was also being constitutionally appointed. But yet, losing it due to horsetrading, never-mind the constitution, a Law Expert even joked in a seminar in Kota Kinabalu that Sabah politicians can win a medal for frog politics or something like that.

It’s a pity that the Appeal Court Judges accepted the PO to deny the aggrieved in court.

The Counsel for the other side claimed on the grounds that any outcome is academic and he  based it on two main arguments :

1) even if Musa succeeded with his appeal there will be no consequence/outcome because Musa can never satisfy the threshold of Article 6 (3) of the Sabah Constitution which expressly states that the TYT appoints a member of the Assembly to be CM who has the command of the confidence of the majority of the members of the Assembly.

2) even if the Assembly is summoned, with the support of only eight out 60 assemblymen factually and mathematically Musa can never win a vote of confidence for himself or a vote against Shafie and unseat him.

Douglas Lind’s contention the case is academic.

However the larger question is not whether the successor commends the majority in the house the present moment, but whether it was Constitutionally correct to ask back from the CM, the letter of appointment. Just because subsequent to the appointment a bunch of politicians leapfrogged. Hence it is a question of whether it was legally right as well as morally right. From my understanding of the Constitution it was both legally and morally wrong and  I remain to be convinced.

My point is that the PM complained about having to wait long before being sworn-in following the GE14 results. In Sabah, a delay also happened in swearing in the CM but with different consequences.

Imagine if the PM was asked by the Agong to return the appointment letter just because some Pakatan Harapan winners decided to frog over to Barisan Nasional?

Would it then be a case of asking the PM to resign and not sacked?

The larger issue is also, does not what happened in Sabah raise the question, if unchallenged in the Federal Court, that to ordinary people like me, the TYT is the only head of state that can decide whether a CM that he had just constitutionally appointed can be dismissed by him within hours of doing so without going through the State Assembly, which is the rightful place to determine this.

By the same reasoning, does it not seem that the Sabah TYT may be seen to have powers that even the Agong and Sultans do not? I stand to be corrected?

Courts should have looked at whether a Sabah TYT enjoys greater powers than the Agong and Sultans in appointing the head of government and to help rectify if indeed this is the case now.

Because this problem is not addressed and peculiar to Sabah, this tendency of a Sabah TYT to delay appointing a CM has created crises on 3 occasions.

In 1985, 1994 n 2018.

Peoples voices not recognised in this 3 instances of Sabah’s political history – 1985, 1994 and 2018. In all 3 instances, the decisions took a different turn and the government was formed by frogging and other means.

In 1985, Party Bersatu Sabah (PBS) won the Sabah State election with a simple majority of 25 seats. However, PBS was not allowed to form the Sabah State Government by the Istana.

Joseph Pairin Kitingan was kept waiting for more then a day while power grab was underway in the wee hours of the morning. In which, USNO’s 16 seats collaborated with Berjaya’s 6 seats and the Sabah State Government was formed before the sun rose.

The schemers of this plan decided they can still form the government by laying claim to the 6 nominated state seat. The then Prime Minister Dr Mahathir was in Scandinavia and his deputy Musa Hitam had ordered the plotters to give up. Joseph Pairin Kitingan was then only sworn in as Chief Minister after almost 48 hours.

In 1994, something similar happened again with Pairin Kitingan and PBS as victims. This time, Pairin also won with a simple majority of 25 seats despite massive frogging by his assemblymen to government side due to the scrapping of the Anti-Hopping Law (The Barisan Nasional government challenged the Anti-Hop Law that was introduced in 1987 by the then PBS State Government in court and had it scrapped).

This time Pairin had to camp for 3 nights outside the Istana as the then TYT claimed he was too sick to open the Istana gates for Pairin to be sworn in. By the time the Istana gates were opened Pairin had already lost many of his Assemblymen and a new Chief Minister was sworn in after about a month. This eventually led to the downfall of the PBS State Government as the PBS election winners had joined Barisan Nasional parties.

In 2018, it happened again following GE14. But this time there was a major difference. While in 1985 and 1994 Pairin was not able to be sworn in instantly after the election results, this time, Musa Aman was already appointed Chief Minister after an unexplained delay of about 48 hours. And despite being sworn in with his Cabinet members, Musa Aman still lost his government to frogging.

This time the Upko boys did the frogging probably on the orders and advise of Tan Sri Bernard Dompok and despite pledging that as KDMs they will stick together and decide as a bloc and only leave the BN after consensus among themselves. Five assemblymen from Upko and one MP left BN to throw their support behind Warisan and Pakatan Harapan, a day after the general election.

Their action caused the collapse of the BN government led by former chief minister Musa Aman whose cabinet, which included two Upko assemblymen, had been sworn in less than 12 hours before.

I was there on that night of May 9th in Sri Gaya when Tangau came out and answered a phone call apparently from Dompok asking him to go to Shafie’s house in Luyang. Tangau disappeared from Sri Gaya after this phone call and headed straight to see Shafie in his house, alone, leaving all his UPKO boys with Musa Aman in Sri Gaya. Upko then switched allegiance to the Warisan-Pakatan Harapan pact a day after the election.

For how long more must Sabah continue to be the only state where the Assemblymen decides who is to form the government by becoming political frogs and not by the people who voted them?

In the end the CM is appointed through political frogs producing statutory declarations  (SD) instead of the peoples wish being respected.