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IN campaigning for his political party, one leader has repeatedly stated that if his party wins a two-thirds majority of the 73 seat Legislative Assembly (the ‘DUN’), then he will remove Tun Musa Haji Aman as the Yang di-Pertua Negri Sabah (‘TYT’).

In making these claims, this leader claims he has received the very best legal advice on the matter and that if made Chief Minister, he will have the power to dismiss the current TYT.

Aside from the obvious and distasteful political posturing, Sabahans deserve answers to the question of whether a Chief Minister can dismiss a sitting TYT. And if so, how?

The Yang di-Pertua Negri Sabah and the Sabah Constitution

Before answering the question posed, it is first important to discuss the TYT’s position within the context of Sabah’s Constitution.

The TYT is Sabah’s Head of State, custodian and defender of the state Constitution as well as the head of Sabah’s executive branch of government. Constitutional law theory holds that if the Sabah Constitution is the source of all governmental power, then the TYT is the font from which all the State’s executive powers flow.

Put another way, under the Sabah Constitution, the Chief Minister and the Cabinet draw their powers from the TYT and in doing so, govern in his name.

Article 5 of the Sabah Constitution provides that “executive authority…shall be vested in” the TYT and that the exercise of such powers may be exercised by others if sanctioned under legislation.  

Article 6 provides that there shall be a State Cabinet to advise the TYT on the exercise of his executive functions while Article 10 makes clear that the TYT shall only exercise his executive powers on the advice of either the Cabinet or a Minister acting under Cabinet authority.

The only two exceptions where the TYT may act on his personal discretion are when appointing a Chief Minister following a general election or withholding consent for a request to dissolve the DUN (Article 10(2) read with Article 10(4)).

Officially, the Chief Minister and the Cabinet are mere functionaries of the TYT and carry out the business of government through the exercise of executive functions for and on behalf of the TYT.

In practice, however, the TYT is not involved in the day to day running of the government despite all executive governmental power being vested in him. This is because the TYT cannot make decisions or act without the advice of either the Chief Minister or the Cabinet.

Another way to grasp this concept is to think of the Chief Minister as the government’s Chief Executive Officer (‘CEO’) and the TYT as its non-executive Chairman. The CEO makes decisions on a day-to-day basis and advises the chairman on when and how executive power is to be exercised.

In addition to these functions, the TYT is also part of the DUN – the legislative branch of the Sabah Government. Officially, the DUN legislates with the TYT’s assent and is presided over by the Speaker. The TYT himself does not have a casting vote in the DUN and in contrast to the executive, legislative power does not vest in the TYT but in the DUN: Article 26(1). 

For all intents and purposes, the DUN is treated as a distinct, separate and independent arm of government – the “separation of powers doctrine”.

In practice, however, there is significant overlap between the DUN and the executive branch of government since the Chief Minister and the Cabinet must also be members of the DUN.

However, neither the Chief Minister and the Cabinet nor the TYT can make new laws or approve the state budget without the same being passed by a majority of members voting in the DUN. Moreover, the Cabinet itself (which includes the Chief Minister) shall be ‘collectively ’answerable to the DUN: Article 6(6).

The Yang di-Pertuan Agong and the Yang di-Pertua Negri Sabah

Now to the issue at hand. The TYT himself is appointed by the Yang di-Pertuan Agong (‘YDPA’): see Article 1(1). An appreciation of this and the language used in Article 1 of the Sabah Constitution, is important in answering whether the Chief Minister can cause the TYT to be dismissed.

Article 1(1) provides that the YDPA shall appoint the TYT and that person may so be appointed by the YDPA “in his discretion” but “after consultation with the Chief Minister”.

Notice the use of the phrases in Article1: “…in his discretion…” and “…consultation with…” These are wholly different from the language used in Article 6 and 10 where the words “…shall act on advice” and “…may use…discretion only when…” are used. 

A “consultation” differs from an “advice”. Under the Sabah Constitution an “advice” from the Cabinet or Chief Minister is binding on the TYT to act. But as it pertains to the YDPA, a “consultation” carries only its ordinary meaning and does not bind the YDPA to do anything other than to hear and discuss the Chief Minister’s views on the TYT’s appointment. 

Article 1 uses less restrictive language when conferring personal discretionary power on the YDPA compared to the highly restrictive language used in Articles 6 and 10 in respect of the TYT’s personal use of executive powers.

The YDPA under Article 1 is only required to “consult” with the Chief Minster when appointing the TYT.

The appointment of the TYT, itself, is based on the YDPA’s personal discretion. The YDPA therefore is not bound to follow the views of the Chief Minster and appoints the TYT based on his own assessment of who is best suited.

Article 1(2) provides that the TYT “…may be removed from office by the Yang di-Pertuan Agong in pursuance of an address by the Legislative Assembly supported by the votes of not less than two-thirds of the total number of the members thereof.”

Again, the language used here points to the YDPA being conferred with a personal discretion on to whether to remove the TYT, or not, following an address in the DUN and a two-thirds vote in favour of removal.

The use of the phrase “…may be removed…” is critical here. What Article 1(2) requires is for the YDPA to consider the removing the TYT following an address and vote in the DUN. The phrase “…in pursuance of” simply means “in accordance with” and invites the YDPA to either agree with or reject the DUN’s address and vote.

After considering the contents of the DUN’s address and vote, the YDPA is at liberty to either remove the TYT or ignore the DUN’s wishes and maintain the TYT as previously appointed.

This is supported by the fact that there is nothing in either the State nor the Federal Constitution which compels the YDPA to act “in accordance with” an address or vote in the Sabah DUN. Unlike Article 10 of the Sabah Constitution which compels the TYT to only act on the advice of the Cabinet or Chief Minister, the YDPA is not subject to any such provisions that require him to act in accordance with the will of the Sabah DUN.

The phrase “…in pursuance of…” does not remove or vitiate the exercise of the YDPA personal discretion in deciding whether the TYT should be removed or not.

Therefore, whether the TYT is maintained or removed following a DUN address and vote under Article 1(2) is a matter of the YDPA’s personal discretion, exercisable by the YDPA alone.

Thus, a Chief Minister, even if he controls two-thirds of the DUN, cannot remove a sitting TYT without the agreement of the YDPA – in his personal capacity. 

Sabahans should not be mislead. 

Tengku Fuad is a senior lawyer specialising in commercial and public law and has, and continues to, act for the Sabah Government in complex cases. In 2021 Tengku Fuad was appointed as a member of the Federal Government’s Special Task Force  to review legal matters related to the sovereignty of Batu Puteh, Middle Rocks and South Ledge and, in 2022,  was also appointed to the Federal Government’s Special Task Force to resist the Sultan of Sulu’s (heirs) claim against Malaysia. Prior to establishing his firm, Tengku Fuad served as a public company director and was involved in the corporate sector.

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: Forum@dailyexpress.com.my