1) A Brief Analysis
By Hardial Singh Khaira LL.B(Hons)(U.Malaya); LL.M(U.W.Australia) Honorary Research Fellow, Murdoch University

Malaysia has a dubious distinction of having a disproportionately high number of chief ministers of states being dismissed. In fact, the first such crisis in Sarawak was only the second of its kind in the British Commonwealth.1 These dismissals have caused constitutional crisis in the states and brought the Federal and respective State Constitutions into sharp focus. In nearly all the cases, the courts have been asked to interpret the constitutions by either implying certain powers into the written constitutions or including constitutional conventions that either should exist for the better governance of the State or are said to have been inherited from the British. The predominant approach of the courts has been to interpret the letter of the written law strictly and narrowly. It has also highlighted the role and constitutional powers of the heads of states and the power of the Federation to intervene in the states using its various federal powers. The current constitutional crisis in Perak has also drawn attention to earlier decisions related to the dismissal of chief ministers of states. The starting point is of course the case of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli.2 The summarised facts of Stephen Kalong Ningkan (No.1) were that on 16 June 1966, the Governor of Sarawak received a letter signed by twenty-one members of the State Assembly, the Council Negri, (including one ‘signature’ that was a mere rubber stamp) stating that the signatories no longer had any confidence in their Chief Minister. The Governor thereupon wrote and informed the Chief Minister, Stephen Kalong Ningkan, on the same day that from representations he had received he was satisfied that the Chief Minister had ceased to command the confidence of the Council Negri and invited him to resign. The next day, 17 June, the Chief Minister informed the Governor that his view as to the loss of confidence of the members of the Council Negri in the Chief Minister was not supported by the meeting of the Council Negri held on 14 June. Nevertheless, the Governor on the same day, 17 June, informed the Chief Minister that, as he had ceased to have the confidence of a majority of the members of the Council Negri and had refused to tender his resignation and the resignation of the members of the Supreme Council in accordance with Article 7(1) of the Sarawak State Constitution, he declared that the Chief Minister and the other members of the Supreme Council had ceased to hold office. The Governor also appointed the second defendant, Penghulu Tawi Sli, as the new Chief Minister forthwith. Stephen Kalong Ningkan, as the plaintiff, basically claimed a declaration that the Governor had acted ultra vires the Sarawak State Constitution by relying on the letter by members of the Council Negri to determine loss of confidence in the Chief Minister and dismissing him. The proper way
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Thio, S.M., Dismissal of Chief Ministers, (1968) Vol. 8 No. 2 Malaya Law Review 283 at p. 283 [1966] 2 MLJ 187

to assess any loss of confidence should have been by a vote in the Council Negri. It was also argued by the plaintiff that even if the twenty-one signatures (including one that was a mere rubber stamp) were to be accepted, it could not amount to a majority in the State Assembly which had forty-two members. The Governor could not therefore have concluded that there was ‘loss of confidence’ against the Chief Minister. The main arguments advanced by Stephen Kalong Ningkan were that: firstly, the Governor had no power of dismissal, and, secondly, even if he had the power or discretion it could not be exercised arbitrarily or capriciously. The arguments in support centred on the interpretation of some the articles of the Sarawak State Constitution. a) Loss of Confidence (i) ‘Loss of Support’ versus ‘Loss of Confidence’ The first issue that Harley Ag. CJ had to deal with was: what, then, was the meaning of the words in Article 7(1) that ‘the Premier no longer commands the support of a majority of the members’? Harley Ag. CJ referred extensively to the decision of the Nigerian case of Adegbenro v Akintola3 where the courts had to consider if the Premier of Western Nigeria no longer enjoyed the support of a majority of the members. Harley Ag. CJ decided that the Nigerian case needed to be distinguished because it used the word ‘support’ whereas the Sarawak State Constitution required ‘loss of confidence’ and therefore ‘confidence’ of a majority of members implied reference to a vote such as a vote of confidence or a vote on a major issue.’4 (ii) Assessment of ‘Loss of Confidence’ The next issue that Harley Ag. CJ had to consider was: whether the only method to assess the loss of confidence in the Chief Minister was by a vote on the floor of the House? The Federal Supreme Court of Nigeria in Adegbenro was of the opinion that constitutionally, in Western Nigeria, the lack of support could only be determined by a decision or resolution on the floor of the House. On appeal the Privy Council in that case however took the opposite view and held that it was not the only method and ‘lack of confidence’ could be assessed, without limitation, based on other material as well. Harley Ag. CJ, having distinguished Adegbenro on the ground that was a difference between ‘loss of support’ and ‘loss of confidence’ then went on to rule that by the provisions of the Sarawak State Constitution, lack of confidence could only be demonstrated by a vote in the Council Negri as ‘(m)en who put their names to a “Top Secret” letter may well hesitate to vote publicly in support of their private views.’5

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[1963] 3 WLR 63; (1963) 7 JAL 99 Ibid, at p. 193 Ibid.

b) Limits on the Governor’s Powers Harley Ag. CJ accepted that under Article 7(3) of the Sarawak Constitution all Ministers other than the Chief Minister hold office at the Governor’s pleasure.’6 This meant that while the Governor could dismiss Ministers he could not dismiss the Chief Minister in any circumstances. Harley Ag. CJ also said that even if the Constitution were to be construed as giving to the Governor a power to dismiss, that power could only be exercised when the Chief Minister had lost the confidence of the House, and, he had refused to resign or failed to advise the Governor on a dissolution. It was argued by the defendants that in this situation at least, the Governor should have a right of dismissal as otherwise the Constitution would become simply unworkable. It was further argued, that if there was a lacuna in the Constitution it should be filled by the courts. Therefore, even if there was no express power to enforce the resignation of a Chief Minister, that power lay by implication with the Governor. Harley Ag. CJ did not agree that such ‘stop-gaps’ could be improvised. He felt that ‘(j)ust because a Chief Minister or a Governor does not go when he ought to go is not sufficient reason for implying in the Constitution an enforcing power vested in some individual.’7 Harley Ag. CJ decided that there was no need to speculate on what would happen if an occasion arose for a resignation and the Chief Minister refused to resign since in the instant case the Chief Minister had not refused to resign and there was no power to dismiss him. Consistent with the case of Adegbenro, Harley Ag. CJ also did not resort to constitutional conventions to resolve the issues before him. The Privy Council in Adegbenro adhered throughout to the literal meaning of the words used by the constitution-makers and did not go outside the Western Nigerian Constitution to determine the issue. Harley Ag. CJ finally also concluded that in Sarawak ‘a Chief Minister may advise a dissolution, even though he has not as yet lost the confidence of Council Negri. In such circumstances, the Governor's refusal to dissolve might be conventionally unconstitutional, although not illegal.’8 It is important to note that in the end, the decision of the Privy Council in Adegbenro was by-passed by the Western Nigeria Legislature. Ogwurike9 writing on a comparison of the decisions of the Privy Council and the Nigerian Supreme Court has contended that the framers of the Western Nigerian Constitution wanted the Parliament to be responsible at every level for the ultimate fate of Government and Premiers as it was the surest safeguard for the integrity and improvement of democratic institutions and its attendant principles and doctrines.

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Ibid, at p.194 Ibid. Supra, at p. 193 Ogwurike, C., The Governor's Powers to Remove a Premier from Office in Western Nigeria, Journal of African Law, Vol. 7, No. 2 (Summer, 1963), pp. 95-99; http://www.jstor.org/stable/744609