He said the two clauses are standard clauses but that Sabah has an additional special provision that “the leader of such political party, who is a member of the Legislative Assembly” shall be deemed to have the majority confidence of the assemblymen.
“ Only the Sabah Constitution (amended in 1990) contains this unique provision that – to qualify to be appointed as Chief Minister after a general election, he or she must be the leader of a political party who is also at the same time a member of the Assembly,” he said.
In 1990, he said just before the PBS State Government faced Usno-LDP-Akar pack in the State elections, the “1990 amendment”was made.
The reason for the amendment, he said, was to prevent a repeat of the 1985 power grab by Berjaya/Usno that had a combined 22 seats as opposed to PBS’25 seats out of a total of 48 at the time ( one seat,Moyog, went to an Independent).
He said the effect is that for the purposes of forming the State Government under the State Constitution, the combined number of seats won by Usno,LDP and Akar does not count as one bloc.
This is because Usno, LDP and Akar were contesting as separate parties and not under one party with one common symbol,he said.
“As far as the constitution is concerned, it is the political party that counts.
“Electoral pacts using different symbol by different parties do not count as one single entity under the law,” he said in a statement.
The Sabah Constitution (1990 Amendment), he said, stated “…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.” ( Sabah State Constitution, Article 6(7).
“This is unique provision is found only in the Constitution of Sabah and not in the constitutions of Malaysia of other states,” he said.
The standard provision that is common to the Malaysian, Sabah and other states, he said, only states that “ The Yang Di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgement is likely to command the confidence of a majority of the members of the Assembly…”(Sabah Constitution, Article 6(3).
Similarly, the Malaysian Constitution, Article 43 (2)(a):”…the Yang Di-Pertuan Agung shall first appoint as Perdana Menteri to preside over the Cabinet a member of the House of Representatives who in his judgement is likely to command the confidence of the majority of that House…”,he said. Yong said in the event that Usno-LDP-Akar pact gained more seats than PBS but PBS got the most number of seats as a political party, then PBS would still form the government first, although it does not have an absolute majority.
How PBS decides to form a coalition later is a matter for the political process.
“ In this general election in Sabah, the PKR-PAS-DAP pact is in the same footing as the Usno-LDP-Akar pact,” he said.
In the same way that the Usno-LDP-Akar pact was not a registered political party, he said, Pakatan Rakyat is also not registered as a political party.
He said the Pakatan Rakyat is not a single legal entity, neither at Federal nor at Sabah state level.
PKR,PAS and the DAP, Yong said, are contesting as separate parties using different symbols.
“ Datuk Seri Lajim Ukin of PPPS and Datuk Seri Wilfred Bumburing of APS are not the leaders of a political parties under the Sabah constitution. “PPPS and APS are merely NGOs,” he said.
For the purposes of forming government,he said, it is very doubtful whether Lajim and Bumburing will fit the Constitutional requirement.
But since PAS and the DAP are contesting only a handful of seats, they will not get a majority required under the law, he said. “They are totally irrelevant in the contest for State seats. As for Sabah PKR and Star,who both are contesting more than 40 state seats, are merely a committee in Sabah,” he said.
Sabah PKR, he said, has the additional oddity that it contains two NGOs within its midst.
He said it remains to be seen how Sabah PKR-PPPS-APSand Star will overcome this hurdle.
As for SAPP, he said, it is registered party in Sabah that complies with the Sabah Constitution.
As for the BN coalition of several parties, they all contest as a single political Party – the Barisan Nasional, he said. In Sabah BN, he said, the Chief Minister has always been its Chairman.
“However, this situation (CM must also concurrently be the Chairman of BN Sabah) does not apply to other states,”he said.
For instance, the Chairman of BN Penang previously came from Umno (Anwar Ibrahim, Abdullah Badawi) even though the Penang Chief Minister came from Gerakan, he said.
At the moment, the Penang DAP Chairman for Penang is Chow Kon Yeow.
But their Chief Minister is not the Penang DAP Chairman, he said.
“In Selangor, the PKR State Chairman is Azmin Ali but the Selangor Menteri Besar is Tan Sri Khalid Ibrahim.
“These are allowed in their constitutions. But this is not allowed in the Sabah constitution,” he said.
He said that if BN wins a majority of seats in the Assembly, then the Sabah State Constitution states that the Chief Minister shall be the Sabah BN chairman.
“ The hands of the Head of State are tied by the 1990 amendment.Whether the BN National Chairman will change the Chief Minister cum Sabah BN Chairman later is another matter,” he said.
But if SAPP were to win a majority of seats in the election, then the Constitution state that the Chief Minister shall be SAPP leader if he wins his own state seat.
In a scenario that no party has an absolute majority of 31 seats such as, BN Sabah win 20, SAPP(20), Star (8),PKR (10), DAP (1) and PAS (1), the situation, he said, is called the “ hung parliament”.
“ By convention, the Head of State shall then appoint the party with the highest number of seats to form a minority government.
“This minority government shall have to obtain a simple majority a confidence support in the first sitting of the Legislative Assembly following the election.
“Since PKR/PAS/DAP are contesting using different symbols, then their combined majority will not count as one single number,” he said.
On the part of SAPP, Yong said that regardless of whether SAPP has an absolute majority or only a minority of State seats, SAPP offers to other opposition parties to form a Sabah coalition government with the key issues of Sabah Autonomy, Sabah ICs and Land Reforms to be implemented in Sabah.
This coalition, he said, will stabilies Sabah Politics.
And in the event that the BN loses at the Federal level, then it is probable that component parties like Upko, LDP,PBS will abandon BN.
Some Umno elected representatives, he said, will leave Umno to join other winning parties.
“ If these Umno YBs join PKR or PAS, then this is known as the ‘reverse takeover’ of Sabah which replaces Umno with another Umno,” he said.
This reverse takeover, he said,is not acceptable to Sabahans and that SAPP will reject such reverse takeover using “frogs”.
DE (26/4/2013)
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