Early last month, Warisan president Shafie Apdal sent a warning to Sabah governor Musa Aman that he would take the latter to court if Warisan wins the upcoming state elections with a simple majority but is denied the right to form the state government with him as chief minister (CM).

Warisan plans to contest all 73 seats in the Sabah state elections that must be called within 60 days of Nov 11 this year, when the state assembly automatically dissolves.

The Sabah party is hopeful of winning a simple majority but Shafie’s warning is a reflection of the uncertainty of validating the electoral outcome because of an amendment to the state laws on the appointment of the CM and the state government.

Article 6(3) of the Sabah state constitution states: “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.” In Sabah the governor is called the Yang di-Pertua Negeri.

This law remains intact. It is in line with Article 43(2)(a) of the federal constitution which states:  the Yang di-Pertuan Agong (the King) shall appoint a Prime Minister who, in his judgment, is likely to command the confidence of the majority of the members of the Dewan Rakyat.

Article 6(3) of the Sabah law, however, had another law, Article 6(7), that provides a clear instruction on how the CM is chosen. Article 6(7) states: “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.”

Article 6(7) however — despite a great deal of furore, especially by the Opposition party Warisan — was repealed in May last year. This means the Sabah governor can now appoint any member of the state assembly who, in his judgement, is likely to command the confidence of the majority of the Assembly, whether or not that candidate actually has the numbers.

When Article 6(7) was deleted, the clarity it gave to Article 6(3) was removed. In its place is an ambiguity that is left to the governor to resolve, and that is the source of the angst Sabah parties not aligned to the governor are feeling and the reason for Shafie’s warning.

Musa is or was an Umno strongman in Sabah, and the fear is that Umno even without a simple majority may be chosen to form the state government on the basis that with its allies it “is likely to command the confidence of the majority of the Assembly”.

While this is sheer speculation until proven otherwise after the Sabah state elections, such a precedent occurred at the federal level, not once but twice. In 2018, after the Sheraton move, Muhyiddin Yassin of Perikatan Nasional (PN) was appointed PM even though resigned PM Tun Dr Mahathir Mohamad claimed he had a majority.

In 2022, after the general elections, when the coalition Pakatan Harapan (PH) won the most seats but was unable to form a majority government because Sarawak’s GPS and Sabah’s GRS were allied with PN giving it a simple majority, PH’s leader, Anwar Ibrahim, was appointed PM, after which the then king spoke to the other parties, and GPS, GRS and Umno joined forces with Anwar.

The argument to justify the king’s action was Article 40(2)(a) of the federal constitution which states: “The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a Prime Minister”. 

Whether the king’s discretion means he has absolute power to appoint a PM by royal decree, or to disregard another MP’s claim of a simple majority, or to suggest the formation of a unity or any other kind of government, or direct or advise political parties to join whichever party or coalition to form a majority is something for constitutional law experts to sort out and will not be discussed here.

What is suggested here is that the ambiguity of the existing laws, whether at the federal or state levels, imposes a stress on voters. Voters have no certainty that the team they vote for, whose head they support as the next PM or CM or Mentri Besar (CM in Peninsula states), will be respected by the king, governor or sultan.

In this scenario, voters may think that their votes do not count and it may disincentivise them to vote. They are now not free to choose the leaders of their choice because that choice may be overruled by the king, governors or sultans who may be acting according to the provisions of the law but the elected leaders are failing to ensure that the laws are interpreted and applied to defend and uphold the democratic choices of the voters as espoused in the federal constitution.

In a democracy, voters should never go to the polls with the uncertainty that their vote won’t count. And it is the leaders who must ensure that the people’s votes count.

The fact that the voters’ elected representatives in Sabah chose to constrain the voter’s free choice shows that their elected representatives are more interested in forming a government by appointment rather than on the mandate of the people. It’s the same with leaders at the federal level.

The majority of Malaysian voters may not understand that their democratic rights are protected by the federal constitution and so may not fight for them. All the more reason why the leaders must fight on their behalf to protect those rights — not maintain a guilty silence, like the people have been witnessing.

Shafie has vowed that if his party wins the Sabah elections and he can form a government with a simple majority, he will restore Article 6(7).

The Sabah election will show if the voters understand their democratic rights and vote for a party/coalition that restores that right. If they do, it is an encouraging sign that the voters know their rights and will support the party that respects it.

Perhaps, at the federal level, we need a law like Article 6(7) so that a PM is chosen on the evidence of majority support from the Dewan Rakyat. Perhaps, like, Warisan, a Peninsular party/coalition will promise to introduce such a law.

Then, there will be clarity in appointing a PM with the mandate of the people. The people deserve no less