Written by: Averroes
Malaysia is rocked again when on the 29th of July, 2020 Musa Aman who was the former Chief Minister of Sabah and had been acquitted of 46 charges related to illegal logging is a walking freeman. Now, the drama in Sabah had grown intense when he purportedly declares that he has the majority needed to become the new Chief Minister and defeat Shafie Apdal's Warisan party and the PH led coalition. With this new numbers in the Legislative Assembly, he seeks to consolidate power between the Federal and State government under the administration of Perikatan Nasional.
In order to prove this, he would require declaration letters or any other methods to show to the Yang di-Pertua Negeri, (TYT) Juhar Mahiruddin. Though, there are some analysts who believe that Musa Aman is still capable of the role as Chief Minister due to his tenure in office. According to Arnold Puyok of Universiti Malaysia Sarawak, he states that the sweeping incident of being able to collect the view of 32 assembly to submit Shafie Apdal for him was astounding. In July last month, he even claimed to have 33 support of the Sabah assemblymen finally. They include defections from Warisan, UPKO, PKR and DAP.
For other Sabahan political elites, such as Anifah Aman (leader in his Parti Cinta Sabah (PCS) is defined to be a moderate and Pro-Sabahan leader who is generally amiable for the Chief Minister post. The PCS party is a local Sabahan party where it was established in 2013 where he was recently elected to be the President with the former President, Datuk Seri Wilfred Bumburing as the Vice-President.
If there are any loopholes or turbulences in politics, he presents himself as an alternative to his older brother, Musa Aman and expresses his love to him. "Musa adalah abang saya, sudah tentu saya sayangkan dia, tapi politik berbeza di Kuala Lumpur, banyak orang-orang berbeza di sini pun Jeffrey Kitingan dan Pairin Kitingan." Though he further added that it was also time for his brother to retire.
Though, some could say that this is a form of nepotism and lineage favoritism regardless of any possible unscrupulous behavior and ethics during their administration. Others would suggest that this is a normal brotherly solidarity pact and the normal affairs of politics in Sabah that involves family connections. It is noteworthy to highlight what he meant by the political differences between the Federal Territories and Sabah. Legally and constitutionally speaking, there is no difference and both Peninsular and Borneo states have the same issue of party-hopping, nepotism and corruption. The only difference is how they tackle and confront the MA63 question.
For other parties such as Parti Solidariti Tanah Airku (STAR) led by president Jeffrey Kitingan and Maximus Ongkiliu from Parti Bersatu Sabah (PBS) can be bloc of great opposition and a arch-nemesis but their influence may be limited as their political inspirations are more leaned toward the Kadazandusun Murut electorate.
However, Shafie Apdal managed to dissolve the Sabah Legislative Assembly before Musa Aman could ascend and be elected as the Chief Minister. As of now, the alleged 33 members of the Sabah Legislative Assembly are crossing their fingers in order for the judicial review process in court to be a success. Brazenly, Musa Aman and his alleged members of the Legislative Assembly had even sued the TYT for his decision to allow the dissolution of the Dewan and open for a new fresh snap-elections.
They all pointed fingers toward Shafie Apdal for his incompetency to handle the economic ordeals in Sabah and that as of this month, the Department of Statistics Malaysia with the country's GDP showed the lowest ebb at 0.5% in 2019, indicating their failure to manage the state. Unemployment was also at 5.8% which includes more than 117,000 Sabahans.
Adrian Lasimbang, member of Dewan Negara views this as an insult toward the TYT institution and they have done so in the pursuits of their own political interests and without reconsidering the Covid-19 situation. Though, the central focal point is not the question of morality and being contemptible toward the TYT, but it is whether they actually do have the majority. Even during covid-19, everyone's constitutional rights must be protected regardless of his past and this must be his biased perception.
Now, we shall study and predict between the two titans of Shafie Apdal and Musa Aman, who shall become the Chief Minister. The case hearing will be commenced as shcedule on 17th of August. I shall attempt to predict the outcome of this case.
Chronologically, the 33 assemblyman applied for judicial review. According to State Attorney-General Brenndon Keith Soh told reporters that the Sabah High Court has to review whether they do have the authority to hear the case. The issue is that, Whether the TYT's decision is justiciable. The parties defending would be the TYT (Juhar), Shafie Apdal, the Election Commission and the Sabah State Government. They are also seeking to stop the upcoming state polls from the dissolution within 60 days.
Counsel for Musa, Tengku Fuad Ahmad said that the TYT was wrongfully advised to dissolve the Dewan and that was read with article 21(2) of the Sabah State Constitution.
On the other hand, Soh gave a different reasoning as the TYT has the absolute discretion to dissolve the Dewan such as the other Malay Rulers in peninsular Malaysia. This is because, nothing indicates that there must be written consent which is similar to the Federal Constitution as under article 40(2)(a) & (b) to dissolve and elect a Prime Minister.
Furthermore, the statutory declarations and letters by the 33 assemblyman came only after the dissolution was made and it is assumed that Shafie Apdal still had the majority under the consciousness of the TYT. The dissolution was made on the 30th of July. His entourage to the Istana Negeri was also blocked by a police roadblock, disabling him to present to the TYT to show his majority support.
To be exact, we can already assume that the relationship between Musa Aman and the TYT is sour when after the 2018 GE-14 results, there was also party-hopping that happened in Sabah and he brought the case to court as in Tan Sri Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor and Another Appeal. The TYT advised Musa Aman to resign after his camp defected to Shafie Apdal's where the latter was sworn in accordance with article 6(4) of the Sabah State Constitution and article 10(2)(a). Since Musa Aman had lost majority, he had to resign as under article 7(1). Since he was vacated, he had no power to request for dissolution since he is no longer Chief Minister and Shafie's majority proved this.
Therefore, it is true that if Musa Aman wanted to prove that he had the majority, then the TYT must accept and be in the middle ground with him as to disallow the dissolution of the Dewan. Since he presented the letters or statutory declarations late and was stopped by the police roadblock, the TYT still believed that Shafie Apdal had the majority.
In the case of Dato' Seri Ir Hj Mohammad Nizar Jamaluddin v Dato' Seri Dr Zambry Abdul Kadir, there were 31 assemblymen which three had also defected and that His Royal Highness withheld his consent to dissolve the Dewan as the appellant no longer had the majority which both the Sabah State Constitution and Perak State Constitution were in Pari Materia which is seen per article 16(6) and article 32(2).
In the case of Datuk Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak, Yang Di-Pertua Negeri Sabah & Ors, the TYT also refused to allow the dissolution of the Dewan when there were defections from Joseph Pairin Kitingan's camp which vacated him and rendered his majority lost. There was also proof 30 petition signed letters from the assemblyman and the three defectors. So this further strengthens the argument that Shafie Apdal was not shown to have lost the majority and is still believed to hold the majority by the views of the TYT which allowed him to dissolve the Dewan.
Lastly, it is equally imperative to scrutinize the case of Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan, two Chief Ministers were appointed on the same day after the Sabah 1985 state elections. This caused massive protests and widespread death in Sabah, with bombings and the massive influx of Filipino refugees supporting a certain political alliance.
This led to food shortages, people took shelter at the National Mosque, there were street litters everywhere and that there was a possibility that Sabah would plunge itself into an emergency. The application of ISA was also rampant. This was cited as the Silent Riot where there is even a documentary about it by Nadira Ilana. You may watch this on Youtube.
It was held that the TYT did not exercise his powers properly as the plaintiff coerced him due to the chaotic situation, under his own judgement as under article 6(3) of the Sabah State Constitution. The TYT should be given free will, impartiality, independent volition in a dignified manner with his own judgement to appoint a Chief Minister. So if there are any force and compulsion on Musa Aman's side, then he is placing pressure on the TYT as he should be given his own discretion whether to decide if Shafie Apdal has lost confidence or not and to allow the dissolution of the Sabah Legislative Assembly.
To conclude, I believe that it is within the purview and prerogatives of the TYT to determine who has lost the majority and to dissolve the Legislative Assembly. His powers are equivalent to those of the Rulers in Peninsular Malaysia, though limited and exempted from the Conference of Rulers as under article 38 of the Federal Constitution. I highly encourage the judicial review to proceed and distinguish its outcome with my predictions. Hopefully, I pray that the 1985 Silent Riots would not happen in Sabah again and remains a peaceful and harmonious state in Malaysia.
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