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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 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 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. 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 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.

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 twenty-
two (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