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By Hardial Singh Khaira LL.B(Hons)(U.Malaya); LL.M(U.W.Australia) Honorary Research Fellow, Murdoch University
[This is a follow up to an earlier article at: http://www.scribd.com/doc/14582045/Dismissal-of-Chief-Minister-Ningkan1] On 14 September 1966, just a week after the judgment of Harley Ag. CJ in Stephen Kalong Ningkan No.1, a state of emergency was proclaimed1 throughout the State of Sarawak by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution although the Emergency of 1964 had yet to be lifted and was still in force throughout the country. Consequent to the Proclamation, the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was passed by the Federal Parliament in a special session on 19 September 1966. It amended clauses (5) and (6) of Article 150 of the Federal Constitution by inserting after ‘this Constitution’ the words ‘or in the Constitution of the State of Sarawak’ and providing further that, notwithstanding anything in the State Constitution, the Governor may summon the Council Negri, suspend standing orders and issue directions binding on the Speaker. The main aim of these provisions seems to have been to compensate for the lack of power on the part of the Governor of Sarawak to dismiss the Chief Minister. The amendments to Article 150 were meant to be temporary as they were to cease to have effect six months after the termination of the Emergency. On 20 September 1966 the Governor of Sarawak acting under the said new Act and not on the advice of the Chief Minister of Sarawak (as normally required by the Constitution of Sarawak) called a meeting of the Council Negri of Sarawak for 23 September 1966. After a vote of no confidence against him in the Council Negri on that day, Stephen Kalong Ningkan was, on 24 Deptember 1966, again dismissed as the Chief Minister by the Governor of the State. Stephen Kalong Ningkan, for a second time, brought actions in the High Court of Borneo and the Federal Court to challenge his second dismissal. A. High Court of Borneo2 In the High Court of Borneo the constitutionality of the declaration of emergency was challenged. Stephen Kalong Ningkan contended that the proclamation of emergency was null, void and of no effect by reason of the fact that it was not made bona fide but was made in fraudem legis and consequently, the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was null, void and of no effect. The defendants applied for the writ and pleadings to be struck out because they contended that it involved matters beyond the jurisdiction of the court. The defendants’ application to strike out the writ was denied as Pike CJ ruled that the bona fides of the declaration of
Gazette Notification P.U. 339A Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (No. 2)  1 MLJ 46
the proclamation of emergency raised a cause of action that was within the jurisdiction of the court. In respect of the making of the Proclamation by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution the defendants had argued that the act of the Yang di-Pertuan Agong was a prerogative that could not be questioned in any court as the power conferred by Article 150 was not a power delegated by Parliament but a power vested by the Constitution itself in the Yang di-Pertuan Agong. Pike CJ ruled that the as the Yang di-Pertuan Agong acted on the advice of the cabinet it is not a prerogative power and could be challenged in court. However, Pike CJ struck off certain parts of the plaintiff’s claim that related to a declaration that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was null and void and ultra vires the Federal Parliament as by reason of the provisions of Articles 4 and 128 of the Federal Constitution only the Federal Court had exclusive jurisdiction to decide the matter and it was therefore beyond the jurisdiction of the High Court of Borneo. B. Federal Court3 Stephen Kalong Ningkan next obtained the leave of the Federal Court for institution of proceedings against the Government of the Federation of Malaysia for a declaration that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was invalid and/or was ultra vires the Federal Constitution. In his petition Stephen Kalong Ningkan alleged that no grave Emergency had arisen in the State of Sarawak and the Federal Cabinet well knew that no such emergency existed ‘whereby the security or economic life of Sarawak was threatened’; that the proclamation was in fraudem legis in that it was made for the purpose of removing him from his lawful position as the Chief Minister of Sarawak. It was further contended that the amendment of clauses (5) and (6) of Article 150 of the Federal Constitution were null and void as ultra vires the Parliament and contrary, not only to Article 150 and Article 161E(2) of the Federal Constitution, but also the entrenched provisions in Article 41 of the Sarawak Constitution and relevant provisions in the Malaysia Act 1963. Barakbah LP ruled that no evidence could be adduced to show that the Yang di-Pertuan Agong had acted in bad faith in having proclaimed the emergency. In his opinion: It was incumbent on the court to assume that the Government was acting in the best interest of the State and the circumstances which brought about a proclamation of emergency were non justiciable.4 The Yang di-Pertuan Agong was the sole judge on whether a state of emergency existed and it was not for the court to inquire as to whether or not he should have been satisfied.5
3 4 5
Stephen Kalong Ningkan v Government of Malaysia  1 MLJ 119 Ibid, at p.122 Ibid.
Federal Parliament had unfettered powers under the Federal Constitution during an emergency to amend the Federal Constitution and the Constitution of Sarawak. In coming to his decision Barakbah LP (as did Azmi CJ) relied heavily on the Privy Council decision of Bhagat Singh v King-Emperor6 which involved one of India’s greatest freedom fighter of independence and is today regarded as its national hero. The Privy Council decision was suspect as it was seen as an imperialistic court that gave the British Governor-General of India absolute powers during emergencies without any necessity to give reasons for his actions. The Governor-General of British India in the 1930s obviously enjoyed much greater discretionary and decision making powers than the Yang di-Pertuan Agong. Azmi CJ considered and ruled on the following arguments: • Article 41(1) of the Sarawak Constitution states that the provisions of Sarawak State Constitution may only be amended by an ordinance enacted by the Legislature and ‘may not be amended by any other means.’ Azmi CJ ruled that ‘notwithstanding the existence of these words in the Sarawak Constitution, the Yang di-Pertuan Agong may in exercise of his authority under article 150 of the Federal Constitution amend the Constitution of Sarawak under article 150 clause (5)…’7 • That even under Article 150 the powers of the Federal Parliament were only confined to the Federal List. Azmi CJ rejected this contention as well stating that, as Article 150 only exempted certain matters such as Muslim law or the customs of the Malays or the native law and customs in the Borneo States, it could not be said to be confined to the Federal List only. • That under Article 161E(2) of the Federal Constitution no amendment to the Constitution of Sarawak could be made without the concurrence of the Governor of that State. Azmi CJ’s view was that since the words in Article 150(5) provide that ‘article 79 shall not apply to a bill for such a law or an amendment to such a bill, nor shall any provision of this Constitution or any written law which requires any consent or concurrence to the passing of a law or in consultation with respect thereto,’ there was no necessity for the concurrence of the Governor of Sarawak.
LR 58 IA 169; 58 Indian Appeal PC 1931 Ibid, at p.125
Ong Hock Thye FJ while concluding that he was ‘unable to say, with any degree of confidence, that the Cabinet advice to His Majesty was not prompted by bona fide considerations of security’8, and therefore dismissed Stephen Kalong Ningkan’s application, disagreed with some parts of the judgments of Barakbah LP and Azmi CJ. He ruled that the Yang di-Pertuan Agong was not the sole judge as it was plain that in accordance with Article 40(1) of the Federal Constitution he acted on the advise of the cabinet in deciding to declare an emergency and his proclamation was therefore justiciable. He refused to apply the Indian cases, distinguishing them on the grounds that section 72 of Schedule IX of the Government of India Act 1935, was manifestly not in pari materia with Article 150 of the Federal Constitution and the constitutional position of the Malaysian Cabinet was not comparable with or similar to that of the Governor-General of India.9 C. Privy Council10 Finally the dispute was referred to the Privy Council which affirmed the dismissal of Stephen Kalong Ningkan under the emergency powers that were used. The Privy Council acknowledged that it had no doubt that the immediate purpose of the Proclamation of Emergency was to enable the Federal Parliament to exercise its further legislative powers provided for by Article 150(5) of the Federal Constitution to break the constitutional impasse which had come about in Sarawak.11 The Privy Council also acknowledged that the main aim of the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was to make good the lack of powers on part of the Governor on which Harley Ag CJ had based his judgment and involved a modification, albeit temporary, of the 1963 Constitution of Sarawak that would have been beyond the powers of the Federal Parliament before the declaration of Emergency.12 It was again argued by Stephen Kalong Ningkan that the Proclamation of Emergency was fraudem legis as: There existed earlier emergency provisions made or enacted in 1964, in relation to the whole Federation, which were still in operation and were sufficient to deal with any threat to the security of any part of the Federation.
Ibid, at p. 128 Ibid, at p. 125 Stephen Kalong Ningkan v Government of Malaysia  2 MLJ 238 Ibid, at p. 240 Ibid, at p. 241
10 11 12
The evidence showed that none of the usual signs and symptoms of ‘a grave emergency’ existed in Sarawak at or before the time of the Proclamation. No disturbances, riots or strikes had occurred; no extra troops or police had been placed on duty; no curfew or other restrictions on movement had been found necessary; and the hostile activities of Indonesia caused by the Confrontation had ceased. Nevertheless, the Privy Council decided that: Stephen Kalong Ningkan had not discharged the onus to prove that the Proclamation was fraudem legis. The word ‘emergency’ as used in Article 150(1) could not be confined to the unlawful use or threat of force in any of its manifestations and while it must not only be grave but also be such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself was capable of covering a very wide range of situations and occurrences, including the collapse of civil government. It had no ground for holding that the Government of Malaysia had acted ‘erroneously or in any way mala fide in taking the view that there was a constitutional crisis in Sarawak, that it involved or threatened a breakdown of stable government, and amounted to an emergency calling for immediate action.’13 While the terms of Article 41(1) of the 1963 Constitution of Sarawak were ‘sufficiently explicit to make it difficult as a matter of implication to construe the Federal Constitution as empowering the Federal Parliament to amend the Constitution of Sarawak permanently and at its pleasure’ a temporary amendment on exceptional grounds was different as Article 150(5) was intended to arm the Federal Parliament with power to amend or modify the 1963 Constitution of Sarawak temporarily if required by reason of an emergency. Such an intention must be imputed to the parties to the Malaysia Agreement of 9 July 1963.14
Ibid, at p. 242 Ibid, at p. 243
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