KOTA KINABALU: Article 6(7) of the Sabah Constitution was “poorly drafted and ill-considered”, says Tengku Datuk Fuad Tengku Ahmad.
The legal advisor to the state government said as such, it was timely and proper that the clause was repealed by a two-thirds majority at the Sabah assembly last week.
“From the moment of its enactment in the 1990s, it was apparent that Article 6(7) was poorly drafted, ill-considered and unclear in terms of when and how it should be applied,” he said on Tuesday (May 30).
For example, he said, the terms “political party” and “majority” are left undefined and open to interpretation.
Fuad added that Article 6(7) only contemplates a two-party system where one party wins more seats than the other.
“However, in a multi-party democracy, such as in Sabah, it is possible for no single party to win more than 50% of the seats in the state assembly.
“This means that Article 6(7) would only apply if a single political party won more than 50% of the seats following a general election.
“If no party won more than 50% of the seats contested, then the Article would not apply.
“Again, Article 6(7) is silent on this point and such lack of clarity is woefully inadequate and has led to constitutional uncertainty.
“These inherent weaknesses in the language of Article 6(7) were detailed by Justice Yew Jen Kee in the previous case of (former chief minister) Tan Sri Musa Aman v (Sabah Yang di-Pertua Negeri) Tun Juhar Mahiruddin & Ords, which was subsequently upheld in the Court of Appeal,” Fuad added.
On May 25, the Sabah Legislative Assembly passed a law to stop party hopping, but at the same time, gave the green light to remove Article 6(7) that provides a guide for the Governor to appoint a Chief Minister after an election.
The Article, dubbed the “anti-power grab” law, was introduced in 1990 by the Parti Bersatu Sabah government to stop losing parties from forming a government by utilising six nominated assemblymen to attain a “majority”, a feature unique to Sabah’s legislative assembly.
The deletion of Article 6(7) was tabled together with the anti-party hopping Bill.
Chief Minister Datuk Seri Hajiji Noor had explained when tabling the Bill that the rationale behind removing Article 6(7) was that it was no longer relevant to the appointment of the chief minister under Article 6(3) due to the current political situation.
He added that the amendment would give the governor more leeway in deciding who to pick as chief minister.
Clause 7 is seen as a guide for the Yang di-Pertua Negeri in his decision to appoint a chief minister, which by convention is the leader of the party with the majority or most seats in the assembly.
Towards this end, Fuad said, the state assembly must now amend Articles 6 and 7 of the Sabah Constitution to define and clarify once and for all how state assembly members express whether or not a chief minister commands the confidence of the majority.
“It is my view that the only way the assembly should express its confidence in a sitting chief minister is through a vote of confidence (or no confidence).
“If Articles 6 and 7 were to be amended to achieve this, then it would put an end to the appalling culture of gathering statutory declarations and then racing to the Istana Negeri to be sworn in as chief minister, sometimes in the dead of night.
“By clearly stating the manner and form by which confidence, or no confidence, in a chief minister is to be expressed by a majority of the assembly, political stability and constitutional certainty can be achieved which will be to the benefit of all Sabahans in future,” he said.
