By Hakim Joe
Many Malaysians may not know this but the Perak Fiasco this year is not the second constitutional crisis that has rocked Malaysia (after the UMNO crisis). In fact, UMNO’s deregistration as an association by the Registrar of Societies in 1987 was also not Malaysia’s first constitutional crisis but the second.
The dubious award of Malaysia’s first ever constitutional crisis was bestowed on the Sabahan State Government in 1985 when the Berjaya-appointee Sabahan Governor, Tun Haji Mohd Adnan Robert, despite stern objections from his advisors including the Sabah State Attorney Datuk Nicholas Fung and Sabah High Court judge, Justice Datuk Charles Ho, had decided to swear-in a minority coalition party leader as the Chief Minister of Sabah, a coalition that had won less state seats (22 seats combined) in the just completed State Elections than the victor (26 seats), an action that contravened the State Constitution and the Federal Constitution of Malaysia.
So, what happened during the early dawn hours of 22 April 1985 that eventually propelled the State of Sabah into total chaos? An action by one single man in his capacity as the Governor? Or was he somehow “persuaded” (against all logical reasons) by Datuk Haji Yahya Lampong and the inaction of others present (except for Nicholas Fung and Charles Ho) to continue with the swearing-in ceremony? Before you continue reading, always keep this in mind. A Sultan or a State Governor can appoint a Menteri Besar or a Chief Minister but he cannot dismiss him after swearing him in. The appointed MB or CM can only be dismissed in the State Legislature by a vote of no-confidence, if he is convicted of a crime or if he dies in office.
Once again, let us start from the beginning.
Sabah held its state elections on 21 April 1985, a wide open contest between three political parties, namely Berjaya (BN component party and incumbent state government) led by CM Datuk Harris Mohd Salleh, USNO (previous BN component party and state government) led by Tun Datu Haji Mustapha Datu Harun, and the recently formed, months-old, Parti Bersatu Sabah (PBS), led by Datuk Joseph Pairin Kitingan (former Berjaya Vice President).
By 11pm on Election Day, it was evident that Berjaya had lost the Sabah state elections. CM Harris had in fact lost his seat in his Tenom constituency. The only Berjaya candidates that survived the backlash were the Speaker of the State Assembly, Tan Sri Haji Sunoh Marso, two deputy ministers, Haji Malek Chua and Hiew Ming Kong, plus three others.
Celebrations were however held at the USNO camp. At almost 1am on 22 April 1985, when USNO and PBS had jointly won 25 seats (simple majority), USNO’s director of elections, Haji Karim Ghani called Pairin’s residence to implement the secret plan between USNO and PBS to form a coalition state government, a plan hatched between Pairin and Mustapha to unseat Berjaya prior to the elections. The telephone call was answered by Pairin’s PBS legal advisor, Datuk Herman Luping, who told Haji Karim that “he will get back to him after speaking to Pairin”, a call that was never returned as PBS continued to win one constituency after another. Treachery? Well, nobody said that politics was clean. The initial pact was made at a time when neither USNO nor PBS thought that their respective party could win the Sabahan elections alone.
It was not until later when the return call never came that Mustapha realized that Pairin had double-crossed him. Moral of the story so far - never trust your political opponents.
It was also then that the State Attorney General Datuk Haji Yusuf Rashid, mentioned to Datuk Haji Yahya Lampong that USNO’s 16 seats plus Berjaya’s 6 seats (a total of 22 seats) were sufficient to form the State Government, provided that the Governor grant the 6 nominated seats to them. (The Sabah Governor has the privilege to do so as the Sabahan Legislature consists of 48 contested seats and 6 nominated seats.)
A call (at 2am) was hastily made to the USNO camp for a meeting between the two leaders. At 2.30am, Karim called Datuk Haji Majid Khan (Berjaya’s elections director) to confirm the meeting at Tun Mustapha’s residence. Majid and Abdul Malek Chua arrived about 15 minutes later and were taken to meet Mustapha. In the meeting, Mustapha was skeptical about this “plan of action” that could unseat PBS but a subsequent telephone call from the Istana “inviting Tun Mustapha to take the oath of Sabah CM” banished all doubts from the USNO President’s mind.
Why did the Governor do it knowing very well that PBS had won 26 seats to Berjaya’s 6 seats and USNO’s 16 seats? Events soon unfolded that Harris had called the Governor after receiving the call from USNO at 2am, informing him that Berjaya has formed a coalition with USNO and that their combined total of 22 seats plus the 6 nominated seats (by the Governor) constitutes a simple majority win in the 54-seat Sabah Assembly. It was then that instructions were given to Adnan’s ADC, Haji Mandalam Marziman, to prepare for the swearing-in ceremony in the wee hours of the night (or is it day?). It was also then that Madalam received a call from the PBS legal advisor, Datuk Herman Luping, as to whom he would need to contact to organize the formal swearing-in ceremony for Pairin as the CM of Sabah.
Mandalam then proceeded to contact the Governor’s private secretary, Sukarti Wakiman, to inform him of Adnan’s decision and to contact the Protocol Officer, Ahmad Jalil, to prepare the arrangements for the ceremony. Ahmad Jalil was already at his office and called the Secretary to the Cabinet, Richard Ngui Thien Soong, to bring all the Instruments of Appointment and Oath of Office to the Istana. It was also then that Ahmad Jalil called Mustapha’s residence to inform him of Adnan’s decision and to invite him to the Istana. The time was almost 2.45am now. By then Harris had already dispatched Nicholas Fung and the State Secretary, Hamid Egoh, to the Istana to help out with the arrangements for the ceremony.
When Richard Ngui arrived at the Istana, he told Ahmad Jalil that the Instrument of Appointment and Oath of Office already had Datuk Harris’s name on it (optimistically never expecting Berjaya’s humiliating defeat) and that Jalil should just blanko off the Harris' name and retype Tun Mustapha’s name on it. It was now that the Sabah State Attorney Nicholas Fung pointed out to Adnan that PBS was the victor and that it was unconstitutional for Adnan to swear in Mustapha, to which the Governor interjected that he knew “what he was doing”.
By then, the guests were all arriving at the Istana and these included Mustapha, Yahya Lampong, Majid Khan, Malek Chua and the Commissioner of Police, Mohd Noor Khamis. When Nicholas Fung saw Yahya and Majid, he once again strongly reiterated that it was unconstitutional for Adnan to appoint Mustapha as the CM. It was then pointed out by Yahya that under Articles 6(3) and 10(2) of the State Constitution that Adnan has the discretion to appoint a member of the Assembly so long as he is satisfied that the member is likely to command the confidence of the majority of Assembly members. Nicholas Fung was not easily cowed and warned of the dire consequences if the swearing-in ceremony was permitted to go ahead, but to no avail. It was then that Adnan asked if Kuala Lumpur had been consulted of his decision to which Majid replied that Harris was trying to get in touch with Musa Hitam (the acting PM as Mahathir was in London). It was also then that Adnan asked if a judge was necessary to which High Court judge, Justice Charles Ho was immediately called up on the phone to attend the ceremony at the Istana.
Harris managed to contact acting PM, Musa Hitam at around 3.40am, and informed him of the Berjaya loss and the subsequent proposal to form a coalition party with USNO. Harris also told the acting PM that Adnan had decided to appoint Mustapha as the CM to which Musa said, “Datuk, give me a few hours.” Musa was of course naturally apprehensive over the events happening in Sabah as it might create a law and order situation of which the Federal Government had no intention of sticking their head into. After all, Musa might be the acting PM but he was the Home Minister. Pairin might not be able to contact Musa but he finally got through to the Federal Attorney General, Tan Sri Abu Talib of which he explained the situation. Abu Talib then advised Pairin to take legal action against Adnan if the latter had already sworn-in Mustapha because the Federal Attorney General and the Governor possess no power to dismiss the CM once he is sworn-in.
When Justice Charles Ho arrived at the Istana, he was briefed by Nicholas Fung and Hamid Egoh as of the situation to which the Judge told the Governor that it was unconstitutional, that the judiciary did not want to get involved in this illegal event and that who was willing to take the blame if there was any bloodshed? Charles Ho then proceeded to tell Tun Adnan that he wanted nothing to do with this decision and that he was going home. Nicholas Fung left with Charles Ho. Adnan told Hamid Egoh to proceed with the ceremony. It was almost 4am. Moral of story so far, listen to what your subordinates have to tell you.
It was about this time that Kota Kinabalu police chief, OCPD Supt. Victor Lim got a call on his walkie-talkie that Harris and Mustapha were present at the Istana for the swearing-in ceremony. He immediately alerted Pairin and Luping. Luping immediately tried to contact Sukarti at the Istana but was told by Mandalam that Sukarti was not available. Luping then drove to Hamid Egoh’s house but the latter was already at the Istana. It was then that Luping (and a group of PBS supporters) drove to the Istana but found themselves barred from entering. Pairin was kept informed of the worsening situation and he decided to call Musa Hitam, of which he failed to contact at his home. (Musa was in fact at Bukit Aman monitoring the Sabah situation.)
When Hamid Egoh was resting after the swearing-in ceremony, he received a call from Abu Talib, demanding to know what was happening in Sabah. After a lengthy argument, Hamid Egoh told Abu Talib that Mustapha had already been sworn in as the 7th CM of Sabah.
Pairin finally managed to contact his good friend, Musa at about 6.30am. Musa reassured Pairin that they were doing everything to defuse the tense situation and that the Federal Government had to uphold the system of parliamentary democracy and that they will respect the wishes of the people of Sabah. Pairin then instructed his legal team to prepare two letters to Adnan, the first emphasizing that PBS had won the elections and therefore the right to form the state government, and the second as a warning to Adnan that unless he dismisses Mustapha, legal action will be taken against him.
It was at about 9am that Pairin managed to contact Hamid Egoh at the State Secretariat. After properly lambasting the State Secretary for allowing the illegal swearing-in of Mustapha as the CM (probably left, right and centre), Pairin asked Hamid if he still had the power and authority as a State Secretary to set up a meeting with Adnan. Hamid immediately contacted Sukarti, instructing him to make an appointment for Pairin to meet with Adnan. 15 minutes later, Sukarti called Hamid to tell him that Adnan would see Pairin at noon. Hamid conveyed the news to Pairin, who immediately agreed.
Adnan however changed his mind and cancelled the meeting at the last minute. He got his personal secretary to inform Hamid Egoh that he was busy and tired and that Hamid should relay this news to Pairin. When Pairin heard about this snub, he had to move fast lest his supporters start a riot.
Adnan however had an early visitor in the form of KK OCPD, Supt Victor Lim who proceeded to hand over the two letters from Pairin’s legal advisors. This was the first time that Adnan heard (from Supt Victor Lim) that Kuala Lumpur was not pleased with his actions. It was also at this time that Herman Luping turned up at the Istana gates to seek an interview with the Governor with regards to Pairin’s swearing-in ceremony. Of course Adnan refused to see him and asked Supt Victor Lim to convey to Herman that they should deal with the “new” CM and not him.
Kota Kinabalu streets were now completely deserted after Mustapha had announced over the radio that the people of Sabah should not be apprehensive and unduly alarmed over his appointment as CM. Mustapha had also instructed the Press Secretary, Fauzi Patel, to draft a similar statement for Adnan’s private secretary, to be issued by the Istana confirming the Governor’s decision to appoint him as the CM. Fauzi Patel of course had to have this statement confirmed by Hamid but was told to clear it with Nicholas Fung. Nicholas, on the other hand, refused to have anything to do with it as he had no intentions of working for Mustapha and was planning to resign the position of the Sabah State Attorney. A further attempt by Hamid to send the draft to Fung through the Secretary of the Cabinet, Ngui, proved to be equally futile. Hamid was therefore left with no other choice but to vet the statement himself. He then asked Sukarti to forward a copy each to be forwarded to the Information Department, RTM and Bernama.
To highlight the incredulity of the people of Sabah, even the press division of the internal Information Department withheld the release of this statement. Department Head, Justine Miol had to personally go to see Hamid Egoh to confirm its authenticity as he could not believe what he had just read.
At about noon, RTM began relaying Musa’s statement on the Sabah Elections, “The Sabah Election is now over and the people have already made their choice. To the winners, I congratulate them. However, I would like to appeal to all parties, especially those who lost, to respect the wishes of the majority of the people. For we in the Federal Government will also continue to respect the wishes of the majority, based on the system of parliamentary democracy which we hold in high esteem…The Federal Government will continue to ensure that the security situation is under control. In this connection, I would like to remind any group planning to take action which could threaten the security that the Government would not hesitate to take firm actions against them.”
About an hour later, Musa came up with another statement, “I would also like to take this opportunity to explain the Barisan Nasional’s stand in connection with the developments in Sabah after the elections that have just ended…I would like to inform that at 3.40am yesterday, Datuk Harris Salleh had asked my permission that Berjaya under his leadership join USNO to form the new State Government of Sabah. I explained to Datuk Harris that I could not give him the permission as I have to consider…” Moral of the story so far, have high ranking pals in the Federal Government.
The shit had just (literally) hit the fan. This was the second indication (the first was from Supt Victor Lim to Adnan) that the Federal Government had not viewed favorably the turn of events at the Istana, but this was official while Supt Victor’s words were merely unconfirmed hearsay.
Adnan was jolted to the hilt when he heard the statements made by acting PM Datuk Musa Hitam. First was the threat by Musa to take firm actions against anyone who threatened the security of the State (which he did when he made Tun Mustapha the CM subverting the Constitution) and the second was Musa’s disassociation of BN from any actions partaken by the Governor and Berjaya after the elections (meaning that he would not be obtaining any help from Kuala Lumpur). The meeting that Pairin had so far failed to get (with him) suddenly gained prime importance. Hamid was contacted to immediately set up the meeting at 2.30pm “alone with Datuk Pairin”, insisted Adnan.
Despite conveying the message to Pairin that the Governor wanted to see him alone, ten full carloads of supporters (together with Nicholas Fung) accompanied Pairin to the Istana. Pairin arrived early at the Istana (2pm) and was immediately brought to meet Adnan. It was here, less then 24 hours before, that Mustapha was appointed and sworn-in as the new CM and it was here now that Adnan is conspiring with Pairin to bring about the revocation of the appointment (together with Nicholas Fung and Hamid Igoh). Abu Talib was contacted to give his advice and the Federal Attorney General reiterated that Mustapha cannot be dismissed (Kalong Ningkan case) but recommended them to talk to Mustapha urging him to resign on his own accord.
Herein lies the problem. How could they urge Mustapha to resign when they had appointed him less than 24 hours ago? Yacob Marican was fished in to assist and he recommended using Razak Rouse (USNO legal advisor) as the conduit because of the latter’s close friendship with Tun Mustapha. Razak was invited to join the group at the Istana but dreaded the responsibility once it was impressed upon him the full nature of the business at hand. Meanwhile, an official letter was drafted to Mustapha revoking (not dismissing) his position as the CM of Sabah. This letter was then handed to Sukarti, who gave it to Jalil to personally deliver it to Mustapha. Meanwhile preparations were made for the “second” swearing-in ceremony of the day.
This time, RTM and the State Information Department were called in to record the ceremony. There were only four guests at the ceremony (Hamid Egoh, Nicholas Fung, Victor Lim and Charles Ho). It was then that Justice Charles Ho contemplated the evident fact that Adnan’s decision to proceed with Pairin’s appointment as CM without first obtaining Mustapha’s resignation would complicate matters even more. RTM broadcasted the ceremony nationwide later in the evening. On Mahathir’s return to Malaysia, he openly backed what Musa had done to defuse the situation in Sabah.
While the uproar was still at the height of the controversial event, Pairin sprung another surprise by announcing that he had included 3 (out of the 6 nominated members) into his cabinet, namely Bernard Dompok, Nahalan Haji Damsal and Puan Ariah Tengku Ahmad to represent the Malay interests in the state. 3 Kadazans to represent the Malay interest (even though two of them were Muslims)? USNO in the meantime had beseeched Pairin to honor the election pact to form a coalition government but was told in the State Assembly (20 May 1985) that “PBS was perfectly capable of representing the Muslim interest and therefore a coalition with USNO would have served no purpose.” It was then that Yahya Lampong challenged Pairin’s position as CM stating the fact that as Mustapha had never resigned from that post after being appointed by Adnan and since Adnan did not have the power to dismiss Mustapha, Pairin’s subsequent appointment was ipso facto unconstitutional. This revelation shocked many PBS MPs as not all of them knew what really happened on the 22nd of April between the Governor and their party leader. Yahya proceeded to lead all USNO MPs out of the Assembly.
On 22 May 1985, USNO lawyers filed a writ at the KK High Court seeking to declare Tun Mustapha as the rightful CM of Sabah and that the revocation was unconstitutional, null and void; that the Governor’s appointment of Pairin was unconstitutional, null and void; that the Governor has acted unconstitutionally in appointing the State Cabinet; and that all acts and things done by Pairin in the capacity of CM were null and void.
Joseph Kurup (PBS Secretary-General) retorted by threatening to initiate procedures to dismiss all USNO members for their walkout in the May 20th Assembly session. The stakes are now well and truly raised. Whatever that had possessed Adnan to make the decision to appoint Mustapha took on a new dimension when a bomb exploded in the Segama complex the following day. The second bomb exploded on 29 May. This was to be the onset of a series of bombings in Sabah.
To offset the USNO writ, Pairin announced that the Legislative Assembly will meet on May 30th to pass a vote of confidence on his position as the CM. USNO countered this move by applying to the High Court on May 27th for an injunction to stop Pairin from proceeding with the session but to no avail as the application was rejected because the High Court was of the view that they did not have the jurisdiction to interfere with Assembly proceedings. (How much has changed leading to the Perak Fiasco.)
On May 30th, Pairin easily won the vote of confidence. Capitalizing on this victory, Pairin continued his attack on USNO, branding them as conspirators in a coup to snatch power from those who had legally won in the elections. Later, in his defense of the USNO writ, Pairin claimed that Mustapha had conspired with Harris to illegally install Mustapha as the CM and that their attempt to seize power by fraudulent means had been motivated by their desire to prevent the previous government’s financial and administrative misdeeds from being exposed.
On June 4th, the third bomb went off at Tanjong Aru, recording the first fatality. Moral of the story so far, get away from places where bombs are likely to be detonated and never compound one mistake with another (to cover the first one).
To preempt the hearing of the USNO writ, Pairin once again called an emergency session of the Assembly, this time to express its confidence in Adnan’s appointment of Pairin as the CM. USNO members once again boycotted this session as they deemed Pairin’s administration to be illegal and proceeded to lodge a police report to the effect that the vote of confidence constituted a contempt of the court. Here is where the shit really hit the fan. In moving the motion, Mark Koding (Pairin’s deputy) said that Adnan was forced and coerced to appoint Mustapha as the CM.
The court battle begins (to be continued).
PETALING JAYA, Aug 30 — Shah Alam MP Khalid Samad has blamed Umno for the shocking display of bigotry two days ago,…
He cited the actions of Datuk Noh Omar, the Umno state deputy liaison chairman and Agriculture and Agro-based Industry Minister, as the catalyst for the residents’ recent inflammatory protest. Noh had made at least one visit to the proposed temple site in August and told the media that he would seek an injunction to stop the relocation adding that the Selangor government was going against the Federal Constitution by ignoring the sensitivities of Muslims, who make up the majority of residents in Section 23.
