LETTER | On Sept 26, 2020, Malaysians in Sabah went to the 16th state polls and the official results as announced by the Election Commission were as follows:

On Sept 29, 2020, Hajiji Noor the elected representative for Sulaman was sworn in as the 16th chief minister of Sabah by Juhar Mahiruddin the Head of State (TYT).

It is appropriate to look at Article 6(3) of the Constitution of the State of Sabah which provides:

“The Yang di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the Assembly…”

Now, Article 6(3) is not a standalone provision for it must be read together with Article 6(7) which provides:

“For the purpose of clause (3) of this Article, where a political party has won a majority of the elected seats of the Legislative Assembly in a general election, the leader of such political party, who is a member of the Legislative Assembly shall be the member of the Legislative Assembly who is likely to command the confidence of the majority of the members of the Assembly.”

The official version of Article 6(7) in the Malay language is even clearer:

“Bagi maksud fasal (3) Perkara ini, dimana suatu parti politik telah menang majoriti kerusi-kerusi Dewan Undangan yang dipilih dalam suatu pilihanraya umum, ketua parti politik tersebut yang adalah ahli Dewan Undangan, hendaklah menjadi ahli Dewan Undangan yang mungkin mendapat kepercayaan majoriti ahli Dewan.”

From the official results issued by the Elections Commission, Parti Warisan Sabah (which included 6 DAP, 2 PKR, and 1 Upko candidates who contested and won under the Warisan logo and “watikah”) with 32 seats was the political party that clearly won the majority of elected seats; and Shafie Apdal being the elected representative for Senallang and president of Parti Warisan Sabah is the leader of the political party who is likely to command the confidence of the majority of the members of the Legislative Assembly pursuant to Article 6(7).

Hence, it is submitted that the appointment of Hajiji as the 16th Sabah chief minister on Sept 29, 2020 contravened Article 6(3) read together with Article 6(7) and is therefore impugned for being unconstitutional based on the following reasons:

Hajiji’s political party i.e. Perikatan Nasional under which he contested only managed to secure 17 seats compared to Parti Warisan Sabah’s 32 seats.

The leader of both Bersatu and Perikatan Nasional is Muhyiddin Yassin.

It is unambiguous that the impugned appointment of Hajiji was legally wrong when Shafie and his political party explicitly fulfilled the constitutional requirements of Article 6(3) and Article 6(7), respectively, to be legitimately qualified for swearing in as the 16th Sabah chief minister.

On Dec 10, 2022 Hajiji through a press statement issued using a Gabungan Rakyat Sabah (GRS) letterhead - even though GRS was never a member of either Bersatu or Perikatan Nasional - made known he was departing Bersatu and consequently Perikatan Nasional, and to subsequently use GRS as a platform for future political purposes.

Is Hajiji’s position as Sabah chief minister still tenable?

It is an incontrovertible fact that GRS never contested the 16th Sabah election on Sept 26, 2020 let alone won any seats under its logo; this would mean that the already impugned position of Hajiji as the 16th chief minister is also caught for the second time by the provisions of Article 6(3) and Article 6(7).

It is submitted that the answer to this question can be found in the legal maxim “Quod ab initio non valet, in tractu temporis non convalescit” which means “What is not valid in the beginning does not become valid by time.”

Can an unconstitutional appointment be remedied?

Again, it is submitted that the answer is negative because “Politics are to be adapted to the laws and not the laws to politics” or in Latin “Politiae legibus non leges politiis adaptandae”.

So, as a solution, it is implored upon the present Sabah TYT to revoke the impugned appointment of Hajiji as chief minister as the same was void ab initio like what former and late TYT Adnan Robert did to Datu Mustapha Datu Harun after the 1985 Sabah election saga.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.