In picking Sabah CM, governor has no fixed mathematical formula, says lawyer

A lawyer says ‘is likely to command’ the confidence of a majority means the chief minister could have a support of 50% and below in the state assembly. (Bernama pic)

PETALING JAYA: There is no fixed mathematical formula for the Sabah governor to rely on in appointing a chief minister among the 73 elected assemblymen, constitutional lawyer Bastian Pius Vendargon said.

He said this involved an exercise of the governor’s judgment as to who was likely to command the confidence of the majority.

He said one must also do a harmonious reading of Articles 6(3) and 6(7) of the state constitution.

Article 6(3) states that the governor shall appoint a chief minister who is a member of the legislative assembly, who in his judgment is likely to command the confidence of a majority of the members.

Article 6(7) states that, for the purpose of Clause (3) of this article, where a political party has won a majority of the elected seats in a general election, the leader of such political party shall be the member of the assembly who is likely to command the confidence of the majority of the members.

He said the governor could not be expected to look at a precise mathematical formula in appointing a chief minister.

“So, the governor can use his discretion to form a judgment as to who has the majority support, and it does not mean it must be 50% or more,” he told FMT.

He also said no courts had the opportunity to interpret Article 6(7) on the meaning of “political party”.

“It is unclear whether it is a single political party, a coalition which must be registered or candidates (non-party members) who use the symbol of a party to contest in the polls,” he said.

Vendargon said this in response to Sabah PPBM’s chief legal adviser, Tengku Ahmad Fuad, who said Gabungan Rakyat Sabah (GRS) and three independents, holding 41 seats in the 73-member assembly, should be allowed to form the next government.

Tengku Ahmad said unless a party had won more than 50% of the seats, Article 6(7) did not come into effect.

GRS comprises Perikatan Nasional (PN), Barisan Nasional (BN) and PBS. PN won 17 seats, followed by BN (14) and PBS (seven).

Warisan Plus, consisting of Warisan, DAP, PKR and Upko, won 32 seats.

Warisan supporters are of the view that the party can form the government and its president and Senallang assemblyman Shafie Apdal is the rightful candidate for the chief minister’s post on the basis that they are the single party with the largest number of seats in the election.

Vendargon said support for the newly appointed chief minister could either increase or decrease and the final test was in the state assembly.

He said this had occurred in the Indian Parliament and its state legislatures.

Vendargon said a backbencher could initiate a confidence motion or the opposition could move a no-confidence motion against the chief minister.

“That will be the acid test. It is in the house that the chief minister must get at least the support of 37 assemblymen to remain in office to administer the state together with his Cabinet,” he said.

Apart from the 73 elected members, the constitution allowed the chief minister to appoint another six assemblymen, and Vendargon said this could be a source of complication and contention.

Lawyer Syed Iskandar Syed Jaafar al-Mahdzar said “is likely to command” the confidence of a majority meant that the chief minister could have a support of 50% and below.

“The constitution did not state ‘shall command’. So, it is not necessary for the governor to be satisfied beyond reasonable doubt that the candidate will get the confidence of the elected members in the assembly,” he told FMT.

He said there could be circumstances where even an individual with a large minority would likely command the confidence of the majority because he might have the support of other members of the house who were not members of his political party.