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DATUK (DATU) AMIR KAHA BIN TUN DATU HAJI MUSTAPHA V TUN MOHD SAID BIN KRUAK, YDPA

SABAH &ORS [1995] 1 MLJ 169

FACTS OF THE CASE: Datuk Joseph Pairin Kitingan (Datuk Pairin) was appointed as Chief Minister (CM) of Sabah, following the Sabah State Elections on 18 and 19 February 1994. On his advice, other elected member from his party including the plaintiff, were appointed to form the State Cabinet on 21 February 1994. 3 members of State Legislative Assembly defects from his party (PBS) to the opposition party (BN). On 13 March 1994, Datuk Pairin requested the YDPN, the first defendant to dissolve the assembly, to call for a fresh mandate from his people but YDPN refused to. Then,on 16 March, YDPNs office received a petition signed by 30 members of the Legislative Assembly declaring that they no longer had any confidence in nor would give any support to Datuk Pairin and requested to procure the resignation of Datuk Pairin as CM. Datuk Pairin decided to tender his resignation as the Chief Minister of Sabah on 17 March 1994 by his own did not involve the resignation his other minister. On the same day, the YDPN appointed 2nd defendant as the new chief minister and on 24 March 1994, the YDPN appointed 3rd t 9th defendants as new members of the cabinet on the advice of new CM. The plaintiff then sought a few declarations. THE ISSUES ARISE: 1 Whether Datuk Pairin has lost the confidence of the majority of the members of the Legislative or not since there was no motion of no confidence held. 2 Whether the resignation of Datuk Pairin by his own effects the appointment of the plaintiff as Deputy CM and the minister of Agriculture and Fisheries and other cabinet members by virtue of art 7(2). 3 Whether the YDPN (1st defendant) could appoint the 3rd to 9th defendants as cabinet members when at all material times the appointments of the plaintiff and other ministers had not been revoked nor had resigned. 4 Whether the appointment of the new cabinet members by YDPN are invalid because the YDPN acted by relying upon the purported petition signed by 30 assemblymen outside Legislative Assembly.

THE DECISSION OF THE COURT AND RATIO DECIDENDI The court decided to dismiss the application of the plaintiff. Under art 7(1), if the chief minister ceases to command majority of the members of the Assembly, then he shall tender the resignation of the members of the cabinet and the matter that he resigned his post by his own should not be arise because the resignation of him was a resignation of his whole cabinet. Art 7(2) which says that, any cabinet members should resign his office if his post is revoked by YDPN is not necessarily applicable because with the application of 7(1), by the CM, once the CM knows the fact that he has lost the confidence of majority, he should not wait for a vote of confidence to be formally tabled but immediately take honourable way out by tendering the resignation of his cabinet.The dissolution of the existing cabinet under art 7 actually does not involve YDPN or necessarily, the members of Legislative Assembly, just if CM refuses to do so, then he or she are automatically ousted from the post because there was no provision saying that YDPN could remove CM. The intention behind this requirement of art 7(1) is that, to enable a new cabinet be formed pursuant to art 6. A vote in the assembly is not the only way to determine the confidence of the members of the Assembly in CM but depends on the circumstances. A petition signed by 30 assemblymen has been sent to the YDPNs office stating that they had no longer confidence in Datuk Pairin and requested to procure the resignation of him, and if Datuk Pairin refused to either resign or subject himself to a test of confidence, the YDPN was to invite to appoint 2nd defendant to form a new government. After the defection of the three members of PBS to BN, and appearance of this petition, it shows that the CM has lost the confidence from the assemblymen. According to art 6(2), the cabinet shall consist of a chief minister, and not more than 8 nor less than 4 other members and art 6(3) stated that, the YDPN has the power to elect any CM that he judges command the confidence of the majority and elect other members mentioned in clause 2 with the advice of CM, art 10(2(b), also stating his discretion power to appoint CM and withholding consent to a request for the dissolution of Legislative Assembly. Therefore, the appointment of the 2nd to 9th defendants are valid and constitutional. If any of the previous members wish to continue to be in the cabinet, he or she need to be reappointed upon the advice of new CM and art 6(1) indicates that, there should be a state cabinet to advise YDPN in the exercise of his functions but of course not to say that there must be a cabinet to exist all times. The case referred are Adegbenro v Akintola (1963) and Stephen Kalong Ningkan v Tun Abang Haji Openg Law referred is the State Constitution of Sabah: Art. 6(2),Art 6(3), Art. 7(1), Art 7(2), Art.9(1), Art 10(2)(a) 10(2)(b), Art 14(1)(c), Art 14(2),

Factors to distinguish: This case approved the case of Adegenbro v Akintola because the feature and circumstance are the same as that found in the Nigerian case, the first it was mathematically beyond question that more than half of the members of the members has expressed in the petition that they no longer had confidence in Datuk Pairin as CM. Secondly, no doubt the measurement in Nigeria was a measure of support, not of confidence but for the reason given in the Akintolas judgment, the effect is the same. In Amir Kahars case, Datuk Pairin has lost the confidence and the assemblymen refused to support him. In addition, Datuk Pairin himself has resigned because since there was a hoping party made by other PBS members to BN, the position was reversed with BN having the majority, 27:21, means that the ruling party should be the BN. Extraneous matter could be the evidence of there was a motion of no confidence, it is not only could be arise in the meeting in the house of assembly. Thirdly, art 6(3) of Sabahs constitution and s 33(10) of the constitution of Western Nigeria are same, subject to decision of governor. To distinguish form Stephen Kalong Ningkans case, basically based on its own facts and circumstances. The hard fact in that case (Ningkan) was that the alleged loss of confidence was highly suspect. There was a top secret representation made by persons outside the Council Negri which on the fact of it did not disclose that the representors were the majority of members in the Council Negri. Also, the fact represented was suspicious in the sense that the letter was not signed by all persons listed in the letter and even in respect of those who signed, one of them was represented only by a chop It was that reason the learned judge (Justice Harley) said at page 193 Men who put their names to a top secret letter may well hesitate to vote publicly in support of their private views. In this case, the chief minister resigned by himself and the reason for the resignation was sufficiently given in his press statement and in the explanation given in the Borneo Mail on 11 May 1994 giving his interpretation of the matter. To distinguish with the case of Datuk Nizar, are basically on the facts and legal principles as follows: (1) The loss of trust is clear, unwavering support for the BN, not like in Ningkan, the loss of confidence is apocryphal. (2)There is a clear loss of majority support and are not in dispute. (3) The Chamber members who join / support the BN express their support openly and without hesitation. (4) In the case of Ningkan, on 14 June 1966, i.e. the date of such representations, on the day of the State Assembly sitting, the bill passed without opposition even in the presence of five members of the Sarawak United Peoples Party and a member MACHINDA who normally acts as the opposition. On the same day, no motion of no confidence was held and none bill is not approved. Whereas in the case of Datuk Amir Kahar, 30 members from BN instead of 18 members of PBS stated their distrust of the Chief Minister, and in the case in Perak, it is clear there are 28 members of the BN with three independent members (all 31) against 28 members of the People's Alliance said their distrust against the Commissioner 'Seri Nizar. All 31 members who support the BN has been interviewed by the Sultan Azlan Shah, one by one