GE14 caused a constitutional crisis in Sabah. Here's what it's about

A country's constitution is arguably the most important piece of document as it is the 'Mother of all laws’ in a country. In Malaysia, not only do we have the Federal Constitution which applies throughout Malaysia, but each of the 13 states have their very own state constitution. 

The constitution defines the boundaries of what can and cannot be done within the state. Any act or conduct that falls outside the cornerstones of either the Federal Constitution or the state constitution is an ‘unconstitutional act’. When unconstitutional acts cannot be resolved and results in a deadlock, a ‘constitutional crisis’ occurs.

By now, you may be familiar with the controversy surrounding the tussle between Barisan Nasional and Parti Warisan Sabah to form a government in Sabah. We now have 2 Sabahan Chief Ministers (Menteri Besar) with both refusing to back down, and since the Sabah state constitution does not allow for 2 Menteri Besars, we have a constitutional crisis there. But this crisis isn't something new as it is reminiscent of the events that triggered probably one of the more controversial days in recent Malaysian history – the Perak Constitutional Crisis in 2009.

Before we focus our attention on the unfolding political drama in the Land Below the Wind, let's revisit the story behind the Perak Constitutional Crisis to see how the outcome in 2009 could play a part in resolving the crisis in Sabah.

The GE12 drama in Perak

It all started in the aftermath of GE12 in 2008 when, for the first time in Malaysian election history, the state of Perak fell into the hands of the PKR-DAP-PAS opposition pact, known as the ‘Pakatan Rakyat'. In a 59 seat assembly, Pakatan Rakyat won 31 seats and Barisan Nasional won 28 seats.

In Malaysia, at both federal and state levels, a party has to obtain a simple majority – which basically means more than 50% of the seats – for it to prove that it has the confidence of the majority of the members in the Parliament or state assemblies. Based on this, Datuk Seri Nizar Jamaluddin of PAS was sworn in as the Menteri Besar of Perak. 

Then, things started going wrong. Less than a year later, 3 assemblymen from Pakatan Rakyat quit their parties and became Barisan Nasional-friendly independent assemblymen, which now flipped the seat numbers to 31 – 28. Datuk Seri Nizar no longer had the majority’s support, but was already named Menteri Besar, which was a problem... The issue went to the Sultan of Perak for a resolution.

In their audience with HRH Sultan Azlan Shah of Perak, both parties had their preferred methods of resolving the issue:

• Datuk Seri Nizar sought royal consent to dissolve the assembly to pave way for fresh elections in the State.
• Then-PM Najib (as UMNO Perak Chief) sought royal consent to form the state government.

HRH Sultan Azlan Shah refused the request by Datuk Seri Nizar to dissolve the assembly, and asked him and his cabinet to resign as he no longer commanded the confidence of the majority in the state assembly. Zambry Abdul Kadir of Barisan Nasional was later sworn in as the new Menteri Besar of Perak. However, Datuk Seri Nizar refused to resign as Menteri Besar of Perak.

Pakatan Rakyat claimed that the swearing in of Zambry Abdul Kadir as the new Menteri Besar was unconstitutional because:

1. Datuk Seri Nizar was dismissed without taking a vote on the floor of the assembly beforehand
2. Zambry Abdul Kadir was sworn in as the new Menteri Besar even though Datuk Seri Nizar had not officially resigned.

With this, the legitimacy of the “new” BN-led state government was called into question – resulting in the constitutional crisis. What’s more, Datuk Seri Nizar filed a case to challenge HRH Sultan Azlan Shah’s decision to appoint Zambry Abdul Kadir as the new Menteri Besar in the High Court; culminating in a series of court battles that went all the way to the Federal Court.

How is a “loss of support of the majority” determined?

This was the million dollar question that would decide which way the crisis would go. In short, if the Federal court decided that...

• if a loss of support of the majority is solely established by taking a vote in the state assembly, then the outcome will fall in favour of Datuk Seri Nizar.
• if HRH Sultan Azlan Shah can, on his own discretion, determine that Datuk Seri Nizar had lost the support of the majority of the members in the legislative assembly, then Zambry Abdul Kadir was rightfully sworn in as the new Menteri Besar.

The key in answering this question lies in the interpretation Article 16(6) of the Perak Constitution which states that:

”If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

Long story short, the Federal Court ruled in favour of Zambry Abdul Kadir. 

Because of certain similarities between the Sabah and Perak state constitutions (which will be covered in the point below), the Federal Court referred to a case that from 1995 to interpret Article 16(16) from the Perak Constitution. That 1995 case took place in Sabah – in which then-Menteri Besar Tan Sri Joseph Pairin Kitingan lost the support of the majority of the members in the assembly –  and the High Court which ruled over the case explained that:

The learned Judge noted that there was nothing in the 28 Constitution which could be construed as requiring that the test of confidence must be by a vote taken in the Assembly itself. That fact could also be evidenced by other extraneous sources. In that case the extraneous source was to be found in the clear expression contained in the petition by the 30 assemblymen to the 1st defendant and the admission of that fact by Datuk Pairin himself. – Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak & 8 Ors (1995) 1 CLJ 184

To summarise the above paragraph, a loss of support against the Menteri Besar can be proven in other ways, and not solely by taking votes in the legislative assembly. In context of this article, “other means” could include expressions of a loss of support by the other members of the legislative assembly, such as the 3 assemblymen who crossed over to BN to form the new majority.

But Datuk Seri Nizar refused to resign, is he still Menteri Besar?

Now that the principal question has been answered, what about Datuk Seri Nizar’s refusal to resign from the Menteri Besar post? 

To this end, the Federal Court decided that, in a such a scenario, the former Menteri Besar is deemed to have resigned from his post as it will be “against the principle of democracy” to allow him to continue:

“The appellant cannot continue to govern after having lost the 39 support of the majority. To allow him to do so would be going against the basic principle of democracy.”

– the Federal Court judgment in Datuk Seri IR. Haji Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr. Zambry bin Abdul Kadir

If you want to read more on the decision of the Federal Court, a copy of the judgment can be found here.

The Perak Constitutional Crisis potentially has a significant bearing on the outcome of the ongoing crisis in Sabah. Let's take a look at how things could develop there.

Barisan vs Warisan – the Sabah crisis of GE14

Almost as if it was a carbon copy of the Perak Constitutional Crisis, a similar crisis stirred in Sabah after GE14, this time between Barisan Nasional and Warisan. Initially, both parties won 29 seats in a 60 member state assembly, resulting in a ‘hung parliament’ where no one commanded the majority of support. 

The situation started when Tan Sri Musa Aman claimed that Barisan Nasional had obtained a simply majority of 31 seats after convincing 2 assemblymen from STAR to support Barisan Nasional. He was then sworn in as Sabah Menteri Besar.

However, Shafie Apdal of Warisan also managed to convince 6 assemblymen from Barisan Nasional to cross-over to Warisan, increasing its tally to 35 seats. Just like how things transpired in Perak, Shafie Apdal was thereafter sworn in as the new Sabah Menteri Besar without the resignation of Tan Sri Musa Aman.

So again, the same issue arose here – whether a vote must be taken on the floor in the assembly to determine that Tan Sri Musa Aman had lost the confidence of the majority, or other means could be taken into account.

The matter is going to court, and this is how it could play out

via GIPHY

It needs to be mentioned that this section is theoretical and based on how precedents could apply if the case gets taken to court. There is no guarantee of this scenario happening.

If we look to Article 7(1) of the Sabah Constitution:

Article 7(1) of the Sabah Constitution:

Remember how we mentioned that there are similarities between the Sabah and Perak state constitutions? Look at how similar the two provisions are: 

Article 16(6) of the Perak Constitution

Because of this similarity, the decision on the Perak GE12 crisis could be used as a precedent.

You may ask, what is this precedent all about?

The “doctrine of precedent” says that a judge should normally follow laws created by judges in past decisions. Judges don't wake up each day and decide to change the laws on a whim. A judge decides cases and makes laws as cases are brought before them. Over time, these decisions become example authorities for judges to follow for similar cases in the future. These authorities are called precedents.

Therefore, if the current crisis in Sabah ends up in court, there’s a chance the courts will follow the decisions of the 2009 Federal Court Perak case and the 1995 High Court Sabah constitutional crisis in arriving at a decision.

Musa Aman has since filed a writ of summons in court to challenge the appointment of Shafie Apdal. Given that Shafie has the above precedents in his favour, we could say that Shafie and Warisan have the upper hand in this battle, but we shall have to wait and see how it actually plays out.