VOTE OF NO CONFIDENCE: THE SABAH EXPERIENCE
On March 8 this year Malaysia was hit by a political tsunami when Barisan Nasional lost its 2/3 majority in Parliament and 5 State elections. Then last Wednesday Malaysia woke up to a political earthquake when Sabah Progressive Party (SAPP) called a press conference to make a stand that they have lost confidence in the Prime Minister YAB Datuk Seri Abdullah Ahmad Badawi and their MPs will support a Vote of No Confidence on the PM.
This is an unprecedented event in our Federal Parliament, but not in Sabah. Our State for all its troubles and woes has on more than one occasion been the test case for major political and constitutional law precedents. Which state in Malaysia and perhaps in the whole world has had Anti-Hop Law, Chief Minister rotation and ‘istana incidents’ numbers 1 and 2? Where in the world did a Chief Minister like Datuk Seri Pairin Kitingan in 1990s have to wait outside the Istana gates to be sworn in after his party won the State Elections. I remember that it was because of that incident the mobile toilet was popularized in Sabah as Pairin could not for even a brief moment leave Istana gates to go and search for a normal toilet and do his business.
Datuk Yong – ‘A man for all seasons”
A pastor I know told me that if you cast your bread upon the waters, many days later you will find it. In other faiths there is a similar concept known as ‘karma’. For Datuk Yong it appears to be a political karma of sorts as he was the man who was one of the prime architects in bringing BN to Sabah but now appears to be moving in the opposite direction. He has his reasons for his current stand. Sabahans have suffered long enough from various age old problems like illegal immigrants, power shortages, rising prices and now fuel price hikes. An entire generation has come and gone since BN has come to Sabah but we have yet to experience the boom and glory days of the Berjaya Government from 1976 to 1985. Swift action is needed because Sabah has unlike other more ‘prosperous states’ unanimously returned BN to power. Nevertheless the current situation in some ways mirrors the events of 1994 which are recorded in a civil suit when Datuk Pairin and the PBS-USNO coalition lost power. Again here there is the effect of karma because in 1985 when PBS first came to power, USNO alleged that PBS reneged on a power sharing agreement if Berjaya was defeated. Strangely in the last days of the PBS government, both PBS and USNO who initially worked together and then became bitter rivals finally ended up together again for a brief period of time
DATUK DATU AMIR KAHAR BIN TUN DATU HAJI MUSTAPHA v YANG DI-PERTUA NEGERI SABAH & ORS.
On 18 and 19 February 1994, there was a State election held in Sabah to elect 48 members to the Legislative Assembly and the winner would be entitled to appoint not more than six other nominated members (now abolished). Members of two major political parties, the Parti Bersatu Sabah (‘the PBS’) under the leadership of Datuk Seri Joseph Pairin Kitingan and the State Barisan Nasional (‘the BN’) under the leadership of Tan Sri Hj Sakaran Dandai, contested in the said election. Datuk Amir Kahar belonged to the PBS(USNO) and the three men won their respective State seats. When the results of the election were announced, the PBS won 25 of the total elected seats as against the BN which managed to obtain the 23 remaining seats. So, PBS obtained a majority of the members in the Legislative Assembly by two elected seats. As the leader of the party that had won a majority of the elected seats and a member of the Assembly, Datuk Pairin was, on 21 February 1994, duly appointed by the Yang di-Pertua Negeri as the Chief Minister of Sabah and on his advice, other elected members from the PBS, including Datuk Amir Kahar were appointed to form the State Cabinet. The Sabah Legislative Assembly consisted of 54 members in all, both elected and nominated. Amir Kahar was one of the Ministers and was assigned the portfolio of Deputy Chief Minister and Minister of Agriculture and Fisheries.
On 17 March 1994, Pairin tendered his resignation as the Chief Minister of Sabah but he did not tender the resignation of the other members of his Cabinet. On the same day the Yang di-Pertua Negeri, appointed the Tan Sri Sakaran Dandai as the new Chief Minister to replace Pairin. On 24 March 1994, Yang di Pertua Negeri on the advice of Sakaran Dandai, appointed 7 others as other members of the Cabinet of Sakaran Dandai. Until this time, the other members of the previous Cabinet under Pairin did not tender their resignations and neither were their appointments revoked by the Yang di-Pertua Negeri.
Datuk Amir Kahar as plaintiff (represented by Sabah lawyer Yunof Maringking) named Yang Di Pertua Negeri as the first defendant, Sakaran Dandai as second defendant, and 7 others as the remaining defendants applied to the High Court for the following declarations:
(1) A declaration that since no motion was ever tabled in the State Assembly against Pairin so as to determine whether or not he had lost the confidence of the majority of the members of the Legislative Assembly, the resignation of Pairin on 17 March 1994 was personal to him as a member of the State Cabinet and has no effect on the appointment of the plaintiff as a Deputy Chief Minister and Minister of Agriculture and Fisheries.
(2) A declaration that the first defendant as the head of the State of Sabah acted ultra vires the provisions of the State Constitution by purportedly appointing the third to ninth defendants as members of the State Cabinet on 24 March 1994 when the appointments of the plaintiff and the other Cabinet members who were earlier appointed on 21 February 1994 had not been revoked nor had they resigned.
(3) A declaration that the appointment of the plaintiff as a member of the State Cabinet by the first defendant under an instrument dated 21 February 1994 had not been legally revoked and still subsists in law and hence the plaintiff is still a member of the Sabah State Cabinet and assigned to the portfolio of Deputy Chief Minister and Minister of Agriculture and Fisheries.
(4) Alternatively, a declaration that the appointments of the second to ninth defendants are invalid because the first defendant acted ultra vires the State Constitution by relying upon the purported petition signed by 30 assemblymen outside the Legislative Assembly.
THE PETITON OF THE 30 ASSEMBLYMAN
The first Defendant , the Yang di Pertua Negeri said that in arriving at his decision to appoint Sakaran Dandai as Chief Minister and the 7 other defendants to the Cabinet relied on a petition received by his office on 16th March 1994 and signed by 30 assemblymen of the Sabah Legislative Assembly declaring that they no longer had any confidence in nor would give any support to Pairin as the Chief Minister and requested to procure the resignation of Pairin as Chief Minister. The petition also requested that in the event Pairin refused to either resign or subject himself to a test of confidence, the Yang di-Pertua Negeri was to invite the Sakaran Dandai to form a new government. which read as follows:-
Tuan Yang Terutama Tarikh: 16 Mac 1994
Tun Haji Said Bin Keruak
Tuan Yang Terutama Tun
(1) Kami selaku Ahli-ahli Dewan Undangan Negeri (ADUN) Sabah yang baru dipilih dan sebagai penyokong Barisan Nasional dengan hormatnya memaklumkan kepada Tun bahawa kami tidak lagi mempunyai kepercayaan kepada Datuk Seri Joseph Pairin Kitingan dan kami tidak akan menyokong Datuk Pairin, pemimpin Parti Bersatu Sabah sebagai Ketua Menteri Sabah.
(2) Kami juga memohon memaklumkan Tun bahawa Barisan Nasional dan penyokong-penyokongnya sekarang menguasai majoriti di kalangan ahli-ahli Dewan Undangan Negeri.
(3) Oleh itu dengan segala hormatnya kami ingin menegaskan bahawa Datuk Pairin atau pemimpin-pemimpin dan parti-parti politik atau campuran parti-parti politik yang lain tidak berkemampuan mendapat suara majoriti dalam Dewan Undangan Negeri tersebut.
(4) Dalam keadaan yang demikian kami memohon jasa baik Tun untuk, samada, mendapatkan perletakan jawatan Datuk Pairin selaku Ketua Menteri Sabah atau untuk membantu mengadakan suatu persidangan dewan Undangan Negeri dengan segera dan mengarahkan Datuk Pairin untuk menghadapi suatu undi kepercayaan.
(5) Jika Datuk Pairin enggan mematuhi salah satu arahan tersebut, kami dengan hormatnya memohon Tun melucutkan mandat beliau dan menjemput Tan Sri Haji Sakaran Dandai untuk membentuk sebuah kerajaan yang baru.
(6) Kami dengan hormatnya juga ingin merakamkan di sini perasaan penghargaan kami yang tidak terhingga di atas kepimpinan bijaksana dan ketabahan Tun dalam mempertahankan Perlembagaan.
(A list of 30 names with signatures)
THE SAD & DIGNIFIED RESIGNATION OF DATUK PAIRIN
The affidavit of Pairin in the case disclosed that on 13 March 1994, because of three defections by assemblymen from the PBS to the BN, he requested the Yang Di Pertua Negeri for the dissolution of the 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. Then on 16 March 1994, he saw as announced through RTM, the petition with signatures purported to be those of the members of the Legislative Assembly. On 17 March 1994, he resigned as the Chief Minister but he did not tender the resignation of the other Cabinet members because the ground for his resignation was personal to him and on the same day, the first defendant appointed the second defendant as the Chief Minister of Sabah. On 24 May 1994, the new Cabinet was appointed but the old Cabinet’s appointments were never revoked. Finally, he states that his intention was to resign from the post of Chief Minister only without involving the other members of the Cabinet as was clearly stated in his press statement when he announced his resignation.
The press statement of Datuk Pairin is sad and the first by a Chief Minister of Sabah who had to resign because he lost confidence of the Assembly, but it shows his respect for the rule of law and for peaceful and dignified surrender of power.:-
The Right Honourable Datuk Joseph Pairin Kitingan’s Message Following His Resignation as the Chief Minister of Sabah on 17 March 1994
“Events in the last few days have forced a situation where we must tread carefully to avoid a further deterioration of the political situation. The turn of events have brought about a situation much different from that of 21 February 1994 when I was sworn in as the Chief Minister of Sabah after the Parti Bersatu Sabah had won 25 seats. With the appointment of the six nominated assemblymen, the total was brought to 31 seats. The situation is now reversed with the Barisan Nasional having the majority of 33 seats to PBS’s 21, thus paving the way for it to form the next government.
By convention, the Chief Minister will have to resign if the ruling party no longer has the majority support of the assemblymen. Under the present circumstances, where the PBS majority is greatly reduced with the mass exodus of its assemblymen to the BN, my position as Chief Minister is no longer tenable. Having taken all matters into consideration, I have, therefore, decided to resign from the post of Chief Minister.
It is a sad decision for me but nonetheless I truly feel this is the most honourable thing to do under the present circumstances. I would like to take this opportunity to thank each and every one of you for your full support to ensure Parti Bersatu Sabah’s victory in the just concluded state elections. We truly appreciated your mandate to give us another chance to govern the state.
In the context of what has transpired over the last few days, it is clear that some changes have occurred that tipped the balance of support in favour of the BN. I am now acknowledging the need to respond honourably to the situation. I made this decision to resign with a clear conscience and in the knowledge that I had tried to do my best for the people and the state in the past nine years.
As I offer my thanks and appreciation to the people of Sabah for giving us their trust and confidence, I would also like to take this opportunity to congratulate the new Chief Minister and his government which will be formed today. It is my hope too that the new government will continue to look after the interests of the people and the state and work to ensure a developed, progressive and just society.
I would also like to assure the new Chief Minister and his government that I will co-operate and do my part to serve the people and the state. I sincerely wish him all the best.
THE COURT’S RULING
Despite the valiant last ditch effort by Datuk Amir Kahar to save the Government of the day the Court disallowed his application. The Court held that:-
“The evidence that a Chief Minister ceases to command the confidence of the majority of members of the Assembly may be found from other extraneous sources and are not confined to the votes taken in the Legislative Assembly provided that, those extraneous sources are properly established. In this case, that extraneous source is to be found in the clear expression contained in the petition by the 30 members to the first defendant and the admission of that fact by Datuk Pairin. This clear expression suffices for the first defendant to exercise his discretion to appoint the second defendant as the new Chief Minister to replace Pairin. The expression ‘lost of confidence’ is not, therefore, confined to a vote taken in the Assembly but depends on the circumstances, which are capable of contributing sufficient evidence to indicate such lack of confidence. So, in the circumstances, I am of the view that the resignation of Pairin on 17 March 1994 was in fact a resignation of the whole members of his Cabinet, including the plaintiff, on account of him ceasing to command the confidence of a majority of the Legislative Assembly notwithstanding that the letter of resignation was silent as to the resignation of the other members of his Cabinet including the plaintiff. Consequently, on the acceptance of the resignation by the first defendant, the whole Cabinet of Datuk Pairin collapsed. “
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