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Stephen Kalong Ningkan (No.1)

A Brief Analysis

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

1 Thio, S.M., Dismissal of Chief Ministers, (1968) Vol. 8 No. 2 Malaya Law Review 283 at p. 283
2 [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

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

3 [1963] 3 WLR 63; (1963) 7 JAL 99

4 Ibid, at p. 193
5 Ibid.
b) Limits on the Governors 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 Governors 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.

6 Ibid, at p.194
7 Ibid.
8 Supra, at p. 193
9 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;
The Use of Emergency Powers to Dismiss a Chief Minister

Stephen Kalong Ningkan No.2

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:]

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

1 Gazette Notification P.U. 339A

2 Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (No. 2) [1967] 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 plaintiffs 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 Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119

4 Ibid, at p.122
5 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 Indias
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 CJs 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.

6 LR 58 IA 169; 58 Indian Appeal PC 1931

7 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 security8, and therefore dismissed Stephen Kalong Ningkans
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.

8 Ibid, at p. 128
9 Ibid, at p. 125
10 Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238
11 Ibid, at p. 240
12 Ibid, at p. 241
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

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

13 Ibid, at p. 242
14 Ibid, at p. 243