Bargaining in a Bazaar?

Trevor Padasian and Nimalan Devaraja examine a landmark case on the appointment of a Chief Minister in Sabah.

About 23 years before Malaysia’s political tsunami at the 12th General Election, its eastern state of Sabah experienced its own political tsunami. A vigorously contested Sabah state election, held on 20 and 21 April 1985, resulted in the defeat of the ruling Berjaya Party (“Berjaya”) by the fledgling Parti Bersatu Sabah (“PBS”).
PBS, led by Datuk Joseph Pairin Kitingan (“Datuk Pairin”), secured 25 out of 48 elected seats in the State Legislative Assembly (“State Assembly”), handing a smackdown to Berjaya (which garnered only six seats) and United Sabah National Organisation (“USNO”) (16 seats). PBS was later joined by a candidate from an independent party, Parti Pasok. This was a significant milestone in Sabah’s political history as it was the first time that a party which was not part of the nation’s ruling coalition had earned the right to form the State Government.   
As news trickled in of an upset victory by PBS, a strange turn of events was unfolding at the Istana Sabah. The first indication that it was not going to be an ordinary night for Tun Mohamed Adnan Robert (“Tun Adnan”), the Yang di-Pertua Negeri (“Head of State”), came at about midnight, when he received two telephone calls from former State Minister Lim Guan Sing, advising him not to allow anyone into the Istana. This ominous warning surprised Tun Adnan, but he would remain blissfully unaware of the reason behind this warning until a few hours later.
At about 2.15 a.m., Tun Adnan was informed that Datuk Harris Mohamad Salleh (“Datuk Harris”) of Berjaya wished to see him at the Istana. Giving instructions that only Datuk Harris and his bodyguard were to be allowed entry, Tun Adnan changed into more appropriate attire when he noticed that his private secretary was wearing a necktie.
Thereafter, Tun Adnan went to his office with the intention of meeting Datuk Harris, but was surprised by the presence of the State Secretary (“Tan Sri Hamid”) and State Attorney (“Datuk Nicholas”). In response to Tun Adnan’s query as to the reason for their presence, they informed him that they were requested to be present at the Istana by Datuk Harris to arrange for the appointment of Tun Datu Haji Mustapha bin Datu Harun (“Tun Mustapha”), the leader of USNO, as the Chief Minister as USNO and Berjaya were forming a coalition government. In disbelief, Tun Adnan uttered, “Mana boleh” (How can it be).
Datuk Nicholas went further and informed Tun Adnan that in so far as it was known at that time, PBS had won the majority of seats in the State Assembly, thus rendering it improper and unconstitutional to appoint Tun Mustapha over Datuk Pairin.
In the midst of this discussion, at about 4.00 a.m., Tun Mustapha, with a number of persons in tow, entered Tun Adnan’s office, without the permission of the latter.
After the exchange of pleasantries, Tun Adnan, Tan Sri Hamid and Datuk Nicholas were joined by Datuk Yahya Lampong (“Datuk Yahya”), a prominent member of USNO, and Datuk Majid Khan (“Datuk Majid”), a well-known Berjaya supporter. A ferocious debate ensued as to whether Tun Mustapha could be appointed as Chief Minister under Article 6(3) of the Sabah State Constitution (“Sabah Constitution”).
The foundation of the dispute was rooted in the provisions of the Sabah Constitution which allowed for up to six persons to be nominated members of the State Assembly. The question arose as to whether USNO and Berjaya could procure the appointment of nominated members to increase their seats to a majority in the State Assembly, thereby enabling Tun Mustapha to be appointed as Chief Minister. Datuk Yahya and Datuk Majid argued that they could, while Tan Sri Hamid and Datuk Nicholas took the opposite view.
The debate raged for almost two hours. As the night wore on, Tun Adnan began to feel the strain from his travelling during the preceding 24 hours. Tun Adnan admitted that he could not concentrate or think properly or rationally on the issue because of the strong pressure asserted on him.
Datuk Yahya then slipped a piece of paper to Tun Adnan, on which it was clearly written “We will have no confidence in you and will remove you”. Noticing this exchange, Datuk Nicholas sprung out of his seat in an attempt to see what was written on the paper but before he could do so, it was snatched away by Datuk Yahya and torn into pieces before Tun Adnan could finish reading the note.
From what little he had read, the effect of the note on Tun Adnan was profound and frightened him to his very core. In his mind, it was clear that this was a direct threat to his physical well-being as there was no way that these people could legally remove him from his post as the Head of State when they were not the ones who governed the State. To Tun Adnan, it was clear that this was a death threat directed at him. He also feared for the safety of his family who were all within the Istana.
At this juncture, Tun Adnan felt there was only one possible solution to keep peace and prevent the possibility of any unrest and bloodshed, not only within the Istana but also within the State he loved. It was at this moment that he uttered, “Mari lah kita sumpah Tun Mustapha.” (Let us swear in Tun Mustapha).
At around 5.20 a.m., Tun Mustapha took the oath in the form prescribed for the Sabah Chief Minister before Tun Adnan. Immediately thereafter, Tun Adnan went upstairs, without congratulating Tun Mustapha or providing refreshments for those present at the ceremony. Neither did he bid farewell to Tun Mustapha.
Tun Mustapha’s joy and reign as Chief Minister was short-lived. Within hours, Tun Adnan purported to revoke the appointment of Tun Mustapha as Chief Minister; and at 8.00 p.m. that day, appointed Datuk Pairin in his place.
Tun Mustapha refused to accept the turn of events and hauled Tun Adnan and Datuk Pairin to Court, seeking a declaration that the revocation of his appointment by Tun Adnan and the subsequent appointment of Datuk Pairin were ultra vires the Sabah Constitution.
Hence, it was against the backdrop of the events which took place in the dead of the night that the validity of Tun Mustapha’s appointment as Chief Minister came before the High Court in Sabah in Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No. 2) [1986] 1 MLJ 420.
The judge, Tan Chiaw Thong, J in essence narrowed the dispute to two main issues: first, whether the appointment of Tun Mustapha by Tun Adnan was an issue which could be considered by the court; and second, whether the said appointment was valid.
As a starting point, Tan J ruled that a distinction had to be drawn between a situation where the evidence discloses that no judgment had been made under Article 6(3) of the Sabah Constitution, which was a matter which falls within the purview of the Court to decide; and one where the evidence showed that a judgment has been made, albeit allegedly not properly made. In the latter case, the matter would not be reviewable by the Court.
Tan J then undertook a detailed review of the evidence and ultimately held that the swearing in was null and void and had no legal effect on two grounds.
The First Ground
According to the learned judge, Article 6(3) of the Sabah Constitution specifically requires the Head of State to appoint as Chief Minister a member of the State Assembly who in his judgment is likely to command the confidence of the State Assembly. Therefore, the Head of State cannot constitutionally exercise his judgment on the appointment of a Chief Minister without taking into account the number of elected seats secured by each and every political party, and for that matter by the independent candidates. If the Head of State failed to take into account the number of seats obtained by the parties, it would mean that he had not exercised his judgment under Article 6(3) and would have acted unlawfully or unconstitutionally. This would therefore mean that no judgment was made under Article 6(3).
His Lordship accepted the testimony of Tun Adnan that he had not taken into account the number of seats won by PBS when he had sworn in Tun Mustapha as the Chief Minister. Tun Adnan went further to state that he was still waiting for the official results of the elections to be announced but could wait no longer due to the pressure that was being exerted on him. Justice Tan held that this was contrary to one of the requirements of Article 6(3) of the Sabah Constitution and concluded that Tun Adnan had not made a judgment within Article 6(3) of the Sabah Constitution and that therefore, the swearing in of Tun Mustapha had no legal effect.
The Second Ground
The learned judge held that the Sabah Constitution envisaged that the Head of State is to be allowed to make his judgment quietly, freely, independently and impartially, without any influence, pressure, threat or other factors not sought by him which might influence his judgment. This was consistent with the tradition of all countries that have adopted the party system of government based on Parliamentary democracy and constitutions which follow the Westminster model.  
Justice Tan found that the swearing in of Tun Mustapha by Tun Adnan was not made voluntarily or willingly but was made solely as a result, cumulatively, of the pressure and threat faced by Tun Adnan which operated on his mind when he was frightened, confused, and physically tired, causing him to be unable to think properly. His Lordship added that it would indeed be a remarkable and dangerous situation if he were to accept that the swearing in of Tun Mustapha in such circumstances was legal, constitutional or valid.
The judge also held that Tun Adnan’s conduct immediately after the swearing in ceremony supported the conclusion that he did not voluntarily and willingly swear in Tun Mustapha.
Having concluded that Tun Adnan had made no judgment under Article 6(3) of the Sabah Constitution when swearing in Tun Mustapha, the learned judge held that the appointment was null, void and of no legal effect.
Forced entry
In coming to his decision, Tan J also considered the contention by Tun Mustapha that he had been invited to the Istana by Tun Adnan to be sworn in as Chief Minister. After a detailed examination of the facts, the learned judge rejected Tun Mustapha’s contention. Instead, the judge accepted the testimony of Tun Adnan and the collaborative evidence of two police constables guarding the entrance to the Istana that Tun Adnan had given instructions that no one was to be allowed entry into the Istana except for Datuk Harris and his bodyguard.
His Lordship also concluded that there had been a conspiracy by various individuals, including in particular, Datuk Harris, Datuk Yahya as agent of Tun Mustapha, and Datuk Majid to effect the entry of Tun Mustapha into the Istana for the purpose of having him appointed as Chief Minister.
Signed, Sealed and Delivered (‘Twas Not)
His Lordship went further to find that the oath taken by Tun Mustapha without a signed and sealed instrument of appointment was insufficient to constitute a valid appointment under Article 6(3). This finding was based on the unbroken tradition, custom or usage for the appointment of a Chief Minister in Sabah.
The Nominated Members
The learned judge also considered whether the Head of State could take into account the nominated members of the State Assembly for the purpose of making his judgment as to the choice of a Chief Minister. His Lordship concluded that the Head of State could not do so, nor could he take the nominated members into consideration to inflate the seats held by a party having a minority of the elected seats in order to secure a majority over the party with the majority of elected seats. 
As His Lordship found that the appointment of Datuk Pairin by Tun Adnan was made willingly, voluntarily and freely, without any influence, pressure or threat of any kind from anyone, the appointment of Datuk Pairin as Chief Minister was legal and valid.
The impact of Tan J’s momentous decision was immediate and far-reaching. It enabled Datuk Pairin and PBS to lead the Government of Sabah for the next nine years.
The judgment makes it clear that the Head of State must be allowed to make his judgment for the appointment of the Chief Minister in a quiet, independent and dignified manner, and not as if it were, in the testimony of Tan Sri Hamid, “bargaining in the bazaar.”
It would be appropriate to conclude this article with a statement from Tan J’s detailed and well-reasoned judgement that is at once eloquent and apposite in the heady circumstances of the day:
“[T]he events which occurred at the Istana in the early hours of April 22, 1985 for the duration of some hours … were those which all right-thinking members of the citizens of this beloved democratic country of ours would most certainly never have dreamt of their ever happening, much less expect that they would ever occur – but yet they had materialised. They have undoubtedly brought great shame and dismay to all responsible citizens who sincerely believe in the principles of parliamentary democracy practised in our country. What happened is a blatant travesty of this belief. It is to be hoped that events of such nature will never ever surface again.”