Who eat pork the most in Malaysia?

Several minutes ago I was watching a video clip of a press conference of Malaysia's former prime minister Tun Dr Mahathir. The press conference published by Malaysiakini, I think, was held on 28 June 2009. In that conference Tun Dr Mahathir warned UMNO members against accepting bribes,where he said, "jangan terima rasuah; itu adalah perkara yang dosa; you makan duit haram, macam makan babi" (don't accept bribes; that is a sin; you are living on sinful money, just like eating pork).

Tun Mahathir was equating taking bribes with eating pork. The reverse is that, if one is eating pork one is living on indecent or sinful money or committing sins. It means eating pork equals to taking bribes and vice versa.

For argument sake, taking the words of Tun Dr Mahathir in their proper context, I would say that almost all non-muslims are taking bribes because almost all of them eat pork. And for that matter no Muslim is taking bribes because none of them (by religious conviction) takes or eats pork.

By statistics, who eat pork the most in Malaysia? The answer is obviously non-Muslims. Therefore by rule of logic those who take bribes the most must be non-Muslims because they eat pork the most. They literally eat pork every day I would say. Thus they take bribes every day in their own homes.

Sensible and logical. But is that the truth? Tun Mahathir would know the answer better than anyone else in Malaysia. May our compassionate God save this nation from such a senile and uncalled for remark coming from a respected statesman.

Going back 500 years behind

I am absolutely convinced what is happening in Perak, and especially its Legislative Assembly sitting today, is a laughting stock to all those are familiar with parliamentary democracy. I cannot imagine the shadow government led by Zambry Abdul Kadir attempting a coup detat over the legitimate government led by Mohammad Nizar Jamaluddin.

The law as it stands is very clear that the Head of State does NOT possess the power to remove the Chief Minister/Menteri Besar UNLESS a vote of no confidence has been taken in the DUN and where the Chief Minister has been defeated. But even then the defeated Chief Minister has another alternative, that is, to dissolve the Legislative Assembly to pave way for a fresh election. But if the Head of State refuses to give consent to dissolve the Legislative Assembly, the Chief Minister should tender his resignation and his entire cabinet en bloc. Only at this stage the Head of State can remove the Chief Minister if he refuses to tender his resignation. To date there has been no motion for vote of no confidence has been tabled. So how could the ruler exercise his power to remove the legitimately appointed Chief Minister? No doubt he appointed him but he cannot remove him without the due process. Another point to note is that, it would be a deviation from constitutional convention for the ruler to withhold consent to dissolve the Legislative Assembly. If he does it would subject him to legitimate criticism. That is why in England (upon which our parliamentary democracy is built) the Queen has never withhold her consent to dissolve the parliament.

The solution is very clear for the shadow cabinet led by Zambry instead of going back 500 years behind democracy. Zambry either tables a motion for a vote of no confidence be taken against the Chief Minister and thereafter matters would follow their natural flow of sequence or just just leaves Nizar with his job that had been entrusted by the voters of Perak. The other solution is of course to assist Nizar to persuade His Royal Highness to disssolve the Legislative Assembly and seek fresh mandate.

To continue doing like what is happening today is very uncivilised and a bane for democracy and a laughing stock for all lovers of democracy. The monkey-like bahaviour is so embarrassing and a bad role model for posterity.

Jawah's defeat was not unexpected

I said at one dinner attended by a number of bloggers prior to the announcement of candidate by DSAI in no uncertain term that Jawah would lose in the Batang Ai by-election. "Bawin has a good chance and would win with Jawah's supporters on his side", I said. But nobody seemed to agree except Harris Ibrahim. Five times victory is not a benchmark of a winner, which many like to quote.

The rest is history and I shall write no more on this issue. The TWO BUKITS are not unexpected. Over there they have better consensus as to who should contest.

Congratulations to the winner, Malcolm Mussen. To the loser, learn a bit to analyse your strength and know that time is never the same.

S. K. Ningkan was confirmed removed despite winning the first legal battle

Someone wrote and requested as follows:

"Aki, please tell us here what happened next in Kalong's case. How come in spite of the last sentence in the judgment and the fact that such ruling had never been overruled until today, Tawi Sli's appointment as CM was never rescinded and Kalong was not reinstated? The new generation now would like to know..."

Uchu

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AND SO MY ANSWER IS AS FOLLOWS:

Uchu, I shall state the answer and explanation herein below to your aforemention question.

After the Federal Court declared Ningkan's removal unlawful, Ningkan was reinstated and Tawi Sli's appointment was by itself null and void and of no effect. So Ningkan took back what he had been deprived of. But the ugly turn of event came two weeks later. The Yang Dipertuan Agong by invoking Article 150 of the Federal Constitution, with the advice of the Prime Minister, declared a state of emergency in Sarawak.

As you may be aware of, the Constitution of Sarawak can only be amended by the Dewan Undangan Negeri (better known as the Council Negri) with a two third majority of the members of the DUN or by the Federal Parliament during a state of Emergency. So that was the idea of declaring a state of emergency in Sarawak so that the Constitution of the State of Sarawak can be amended.

The Federal Parliament was immediately convened and a constitutional amendment bill for the state of Sarawak was passed. The bill that was immediately assented to by the YDA gave the Governor of Sarawak a temporary power to dismiss the Chief Minister and also to call for and convene the DUN meeting. Prior to that the Governor could not convene the DUN without the request of the Chief Minister.

Now that the Governor had been clothed with the TWO extraordinary powers, i.e., to call for and convene the DUN meeting and also the temporary power to remove/dismiss the Chief Minister. Hence, the Governor, Tun Abang Haji Openg (Abang Johari's father) immediately exercised his newly found powers by convening and chairing the DUN meeting. Ningkan and DUN members aligned to him boycotted the meeting. All members of the Alliance attended and a vote of no-confidence was taken. With such vote, which was obviously not in Ningkan's favour, the Governor, with the new temporary power dismissed Ningkan for the second time and immediately re-appointed Tawi Sli as the Chief Minister.

Being advised that the best option was to challenge the legality of the declaration of the state of emergency in Sarawak, Ningkan sued the Government of Malaysia (see: Stephen Kalong Ningkan v. Government of Malaysia [1968]2MLJ 238) seeking a declaration that the emergency declared by the YDA was illegal and therefore the laws that stemmed from such illegality were also illegal and of no effect.

But Uchu, fate was not with Ningkan. The High Court dismissed Ningkan's suit/application. He appealed to the Federal Court but the Federal Court upheld the High Court's judgment. He appealed to the Privy Council, which also upheld the High Court's judgment. Ningkan's dismissal was therefore confirmed! [SEE THE FULL REPORT OF THE CASE BELOW]

I don't want to talk about the politics of Ningkan's second removal, which was ugly and dirty. Who to blame? But I can tell you, the only people to be blamed are no other than the Dayak themselves. Without the full assistance and the role played by Tun Jugah (late) and Thomas Kana, Ningkan would have never been removed the way it was. With utmost and due respect to Tun Jugah's (late) and Thomas Kana's relatives and friends, that was the truth, the whole truth and nothing but the truth. I don't mean to say harsh words to those who have passed away. But the truth ought to be mentioned if it is a must. If you can, you may ask Thomas Kana, who is still alive now but I was told his memory of things is very poor now.

That was Ningkan's episode. The worst was not over after the 1966 Ningkan's drama. In 1970, SNAP could have formed a coaltion government with PESAKA. But again Tun Jugah played another crucial decision, which many considered as a great blunder to Dayak's politics. Be that as it may, I have no comment to make on this assumption. Tun Jugah refused to work with SNAP but instead supported BUMIPUTERA (PANAS and BARJASA merged to form BUMIPUTERA). Thus BUMIPUTERA formed the new state government in 1970 with SUPP and PESAKA. Abdul Rahman Yaakub resigned as federal Minister of Education to take the post of the 3rd Chief Minister. Some years later BUMIPUTERA merged with PESAKA to form PESAKA BUMIPUTERA BERSATU (PBB).

Uchu, with that Aki rests his case. I recommend you to read 'The Rising Moon' by M.B. Leigh, if you have the time.

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[1967] 1 LNS 167

STEPHEN KALONG NINGKAN V. GOVERNMENT OF MALAYSIA

FEDERAL COURT [KUALA LUMPUR]
FC (BARAKBAH, LP, AZMI (MALAYA), CJ, ONG HOCK THYE), FJ
[SUIT NO. X 1 OF 1967]
1 DECEMBER 1967

JUDGMENT

Barakbah LP:

This is a petition praying for:-


(a) an order declaring that the measure known as the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, is ultra vires the Federal Parliament, invalid, null and void and of no legal force and effect; alternatively,


(b)an order declaring that cls. 4 and 5 of the measure known as the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, are ultra vires the Federal Parliament, invalid, null and void and of no legal force and effect.

The events which led up to this case may be summarised as follows.

On 22nd July, 1963, the petitioner was appointed Chief Minister of Sarawak. On 17 June 1966 His Excellency the Governor of Sarawak issued a declaration that the petitioner had ceased to be the Chief Minister of Sarawak and purported to appoint another Chief Minister, Penghulu Tawi Sli, in his place. The petitioner instituted proceedings in the High Court in Borneo in order to challenge the validity of that declaration by His Excellency the Governor. On 7 September 1966, the Acting Chief Justice of Borneo, Mr. Justice Harley, gave judgment for the petitioner in these proceedings.* He held, and I quote his words, that: "The plaintiff (that is the petitioner) is and has been at all material times Chief Minister of Sarawak", and he granted an injunction restraining Penghulu Tawi Sli from acting as Chief Minister. On 14 September 1966, His Majesty the Yang di-Pertuan Agong proclaimed a state of emergency under article 150 of the Constitution of Malaysia. That Proclamation of Emergency reads:


WHEREAS WE are satisfied that a grave Emergency exists whereby the security of a part of the Federation, to wit the State of Sarawak, is threatened:


AND WHEREAS article 150 of the Constitution provides that in the said circumstances WE may issue a Proclamation of Emergency:


NOW, THEREFORE, WE, Tuanku Ismail Nasiruddin Shah ibni Al-Marhum Al- Sultan Zainal Abidin, by the Grace of God of the States and territories of Malaysia Yang di-Pertuan Agong in exercise of the powers aforesaid do hereby proclaim that a State of Emergency exists, and that this Proclamation shall extend throughout the territories of the State of Sarawak.

As this case mainly depends on the true construction of Art. 150 of the Constitution it will be necessary to quote the whole of the article. It is as follows:


1 If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security or economic life of the Federation or of any part thereof is threatened, he may issue a Proclamation of Emergency.


2 If a Proclamation of Emergency is issued when Parliament is not sitting, the Yang di-Pertuan Agong shall summon Parliament as soon as may be practicable, and may, until both Houses of Parliament are sitting, promulgate ordinances having the force of law, if satisfied that immediate action is required.


3 A Proclamation of Emergency and any ordinance promulgated under cl (2) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under cl (1) or promulgate any ordinance under cl (2).


4 While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.


5 Subject to cl (6A), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution or in the Constitution of the State of Sarawak, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and 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 of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent.


6 Subject to cl (6A), no provision of any ordinance promulgated under this article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution or of the Constitution of the State of Sarawak.


6AClause (5) shall not extend the powers of Parliament with respect to any matter of Muslim law or the custom of the Malays or with respect to any matter of native law or custom in a Borneo State; nor shall cl (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.


7 At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.

On 20 September 1966, the Federal Parliament of Malaysia met in a special session and passed the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, (hereinafter called the "Emergency Act"). It is "an Act to amend the Federal Constitution and to make provision with respect to certain constitutional matters in the State of Sarawak, consequent upon a Proclamation of Emergency having been issued and being in force in that State." The relevant sections of the Emergency Act are ss. 3, 4 and 5. Section 3 reads as follows:-


(1) In article 150 of the Constitution


(a) in cl. (5), after the word 'Constitution' where it first occurs, there shall be inserted the words 'or in the Constitution of the State of Sarawak'; and


(b)in cl. (6), after the word 'Constitution' at the end thereof, there shall be added the words 'or of the Constitution of the State of Sarawak'.


(2)The amendments made by sub-section (1) of this s. shall cease to have effect six months after the date on which the Proclamation of Emergency issued by the Yang di-Pertuan Agong on the fourteenth day of September, 1966 ceases to be in force.

Section 4 states:


(1) Notwithstanding anything in the State Constitution the Governor may, in his absolute discretion, summon the Council Negri to meet at such place and


on such day or dates and after such period of notice as he shall think fit, and the provisions of the Standing Orders of the Council Negri shall, to the extent that they are inconsistent with the directions of the Governor contained in the Summons, be deemed to be suspended.


(2) In order to ensure that any meeting of the Council Negri summoned as aforesaid is duly held and that any business which it is expedient, in the opinion of the Governor, should be transacted thereat is duly transacted and concluded, the Governor may, in his absolute discretion, direct that any of the Standing Orders of the Council Negri be suspended and give any special directions which he may consider necessary.


(3) Any such directions as aforesaid shall be in the form of a message to the Council Negri addressed to the Speaker, and the Speaker shall comply therewith.


(4) If the Speaker fails to comply with any direction given by the Governor as aforesaid, the Governor may, in his absolute discretion, nominate any member of the Council Negri to act as Speaker, and the member so appointed shall have all the powers of the Speaker, for the purposes of that meeting.

Section 5 is as follows -


(1) If at any meeting of the Council Negri, whether held in pursuance of the provisions of s. 4 of this Act or otherwise, a resolution of no confidence in the Government is passed by the votes of a majority of those members present and voting, and if after such a resolution is passed the Chief Minister fails forthwith to resign his office and to tender the resignation of the members of the Supreme Council, the Governor may, in his absolute discretion, dismiss the Chief Minister and the members of the Supreme Council.


(2) Where the Chief Minister and members of the Supreme Council have been dismissed as aforesaid they shall forthwith cease to exercise the functions of their respective offices and the provisions of the State Constitution shall thereupon have effect for the purpose of appointing a new Chief Minister and members of the Supreme Council and for all other purposes pursuant thereto.

On 20 February 1967, the Lord President of this Court passed an order under article 4 of the Federal Constitution granting leave to the petitioner to commence proceedings against the respondent Government. Hence this petition.

The petitioner's allegations can be listed roughly as follows:

(1) The Proclamation of Emergency made by His Majesty the Yang di-Pertuan Agong was not a valid proclamation and therefore the Emergency Act was bad because it was made on a Proclamation of Emergency which was null and void.

(2) It is not within the powers of the Federal Parliament to amend the Constitution of Sarawak and therefore the provisions of the said Act as contained in ss. 3, 4 and 5 were ultra vires the Federal Parliament; in the alternative the Federal Parliament can only amend either the Federal Constitution or the Constitution of Sarawak in the manner provided by articles 159(3) and 161E of the Federal Constitution.

With regard to the first issue, the Proclamation of Emergency was made under cl (1) of article 150 of the Constitution which states:


If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security or economic life of the Federation or of any part thereof is threatened, he may issue a Proclamation of Emergency.

In my view the question is whether a Court of law could make it an issue for the purpose of a trial by calling in evidence to show whether or not His Majesty the Yang di-Pertuan Agong was acting in bad faith in having proclaimed the emergency. In an act of the nature of a Proclamation of Emergency, issued in accordance with the Constitution, in my opinion, it is incumbent on the Court to assume that the Government is acting in the best interest of the State and to permit no evidence to be adduced otherwise. In short, the circumstances which bring about a Proclamation of Emergency are non justiciable.

Sir Dingle Foot, Counsel for the petitioner, quoted a number of authorities in which the Courts had observed that where a discretionary power was given to any person or authority the Courts would have some sort of control to see to it that the power was properly exercised and that there was no excess or abuse of power. In my view those authorities relate only to delegated legislation and a Proclamation of Emergency by the Yang di-Pertuan Agong, who is the Head of State, does not fall under any of these categories. I am fortified in my view by the case of Bhagat Singh v. The King-Emperor LR 58 IA 169 in which Viscount Dunedin stated (at p. 171):


Now the only case that is made here is that s. 72 of the Government of India Act did not authorize the Governor-General to make the order he did constituting a special tribunal for the trial of the offenders who, having been convicted, are now petitioners here. Section 72, as amended in 1919, is as follows: 'The Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions, as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian legislature and may be controlled or superseded by any such Act.'


The petitioners ask this board to find that a state of emergency did not exist. That raises directly the question who is to be the Judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action, which is to be Judged as such by some one. It is more than obvious that that some one must be the Governor-General, and he alone. Any other view would


render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.

His Lordship went on to say (at p. 173)" Their Lordships must add that, although the Governor-General thought fit to expound the reasons which induced him to promulgate this Ordinance, this was not in their Lordships' opinion in any way incumbent on him as a matter of law."

This was followed by the case of King-Emperor v. Benoari Lal Sarma & Ors. [1945] AC 14 See also the case of Liversidge v. Sir John Anderson & Anor. [1942] AC 206.

In my opinion the Yang di-Pertuan Agong is the sole Judge and once His Majesty is satisfied that a state of emergency exists it is not for the Court to inquire as to whether or not he should have been satisfied.

With regard to the second and the alternative allegations of the petitioner, in my view the important words in article 150(5) of the Constitution are: - "Subject to cl. (6A)", "while a Proclamation of Emergency is in force", "notwithstanding anything in this Constitution" and "make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency". It is my view that because of these words Parliament is not fettered by articles 159(3), 161A, 161C and 161E. The expression "notwithstanding anything in this Constitution" overrides the provisions relating to "concurrence" and "consent". During an Emergency the powers of Parliament are not extended only to matters respecting Muslim law, native customs, etc. [article 150 (6A) ]. I therefore hold the view that under article 150 of the Constitution the Federal Parliament has power to amend the Federal Constitution and the Constitution of Sarawak and ss. 3, 4 and 5 of the Emergency Act are intra vires and have been validly enacted.

In the circumstances I would dismiss this petition.

JUDGMENT

Azmi (Malaya) CJ:

This is a motion for a declaration of this Court that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, hereinafter referred to as the Emergency Act 1966, is invalid and/or that cls 3, 4 and 5 of the said Act were invalid on the ground that they were ultra vires the Federal Parliament.

It is necessary to refer to some facts of this case.

In his affidavit sworn on 13 December 1966, the applicant affirmed to the effect that he was appointed Chief Minister of Sarawak by an instrument under the public seal dated 22 July 1963 and on 17 June 1966 the Governor of Sarawak declared to the effect that he the applicant, had ceased to hold office as Chief

Minister of Sarawak and on 24 December 1966 dismissed him from his position as Chief Minister.

The applicant subsequently filed a suit " (Civil Suit No. K 45 of 1966)* at the High Court at Kuching and on 7 September 1966, the High Court declared that the applicant notwithstanding the declaration of the Governor was and is still the Chief Minister of Sarawak, and at the same time granted him an injunction restraining the person appointed by the Governor from acting as Chief Minister.

On 14 September 1966 the Yang di-Pertuan Agong proclaimed a state of emergency in Sarawak (see Gazette Notification PU 339A).

On 20 September 1966 the Federal Parliament passed the Emergency Act 1966. This act amended both the Sarawak Constitution and the Federal Constitution, and in February 1967, the applicant filed this motion, after having previously obtained the leave of the Lord President.

The applicant urged before us the following reasons in support of this application:


(1)that the proclamation of emergency made by the Yang di-Pertuan Agong (PU 339A) was an invalid proclamation, in the alternative


(2)that it is not within the power of Federal Parliament to amend the Constitution of Sarawak and in the alternative


(3)that the Federal Parliament can only amend the Federal Constitution or the Constitution of Sarawak in a manner provided by article 159 cl (3) and article 161 (E) of the Federal Constitution.

In reference to the first submission it is necessary to refer to article 150 of the Federal Constitution. Clause (1) of that article reads as follows:


(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security or economic life of the Federation or any part thereof is threatened he may issue a proclamation of emergency.

In reference to this point it is necessary to refer to two Privy Council cases namely: (1) Bhagat Singh v. King-Emperor LR 58 IA 169 and (2) King- Emperor v. Benoari Lal Sarma & Ors. [1945] AC 14.

In the Bhagat Singh's case, the facts would appear to show that in May 1930, the Governor-General of India in exercise of the powers given him by s. 72 of the Government of India Act made and promulgated the Lahore Conspiracy Case Ordinance 1930 which transferred trial of a case to a special tribunal. The promulgation of the Ordinance was accompanied by a statement of the reasons moving the Governor-General to exercise his powers. The petitioners were tried and convicted by a tribunal constituted under the ordinance.

It was submitted before the Privy Council that the power under s. 72 was subject to three conditions.


(1)There must be an emergency.


(2)The ordinance must be for peace and good government.


(3)It must be one within the legislative powers of the Indian Legislature.

It was urged that the prosecution did not show that any emergency existed and in fact there was none. It was also urged that the ordinance was not one for peace and good government and that it exceeded the powers of the Indian Legislature.

Section 72 of the Government of India Act reads as follows:-


The Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions, as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act."

I will now quote a relevant passage in the judgment of the Privy Council:-


The petitioners ask this board to find that a state of emergency did not exist. That raises directly the question who is to be the Judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action, which is to be Judged as such by some one.


It is more than obvious that that someone must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.


Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this board declaring that once the Ordinance was challenged in proceedings by way of habeas corpus the Crown ought to prove affirmatively before a Court that a state of emergency existed, or (b) by a 8 finding of this board - after a contentious and protracted inquiry - that no state of emergency existed, and that the Ordinance with all that followed on it was illegal.


In fact, the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it."

In reference to the second point this is what the judgment said:-"It was next said that the Ordinance did not conduct to the peace and good government of

British India. The same remark applies. The Governor-General is also the Judge of that The power given by s. 72 is an absolute power, without any limits prescribed, except only that it cannot do what the Indian Legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it."


It was urged before us that the Indian Section 72 may be distinguished from our article 150(1) in that in our article there were qualifying words to the word "emergency" namely "whereby the security or economic life of the Federation or of any part thereof is threatened." And by reason of the existence of these words in the cl it becomes open to this Court to enquire whether the security or economic life of the Federation was indeed threatened at that time. With respect, in the Bhagat Singh case it was not open to the Courts to enquire whether the ordinance made in pursuance of the proclamation did or did not induce to peace and good government of British India because the Governor-General was held to be the sole Judge of that, notwithstanding the words "for the peace and good government of British India."

In my view therefore notwithstanding the qualifying words the Yang di-Pertuan Agong in exercise of his power under cl (1) of article 150 must be regarded as the sole Judge of that. He alone could decide whether a state emergency whereby the security or economic life of the Federation was threatened, did exist.

There is something in the passage in the judgment of the other case King- Emperor v. Benoari Lal Sarma & Ors. that might suggest that it could still be open to the Court to question the bona fide of the Yang di-Pertuan Agong. The passage is at p. 21 of the report and read as follows:


It is to be observed that the section does not require the Governor-General to state that there is an emergency, or what the emergency is, either in the text of the ordinance or at all, assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance such questions are immaterial, for at the date of the ordinance (2 January 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7 December Rangoon had been bombed by the enemy on 23 December and again on 25 December earlier ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth. Their Lordships entirely agree with Rowland J.'s view that such circumstances might, if necessary, properly be considered in determining whether an emergency had arisen; but, as that learned Judge goes on to point out, and, as had already been emphasized in the High Court, the question whether an emergency existed at the time when an ordinance is made and promulgated is a matter of which the Governor-General is the sole Judge. This proposition was laid down by the board in Bhagat Singh v. The King-Emperor and is plainly right.

At first sight it could be suggested particularly from the first part of the above passage that the Court could still go into the question of the bona fide of the Governor-General, but in my view it is clear that the question whether an emergency existed at the time when an ordinance was made and promulgated was still a matter on which the Governor-General was the sole Judge and that, therefore, no Court may inquire into it. In the circumstances it is no longer desirable that I should deal with all the cases cited to us dealing with the exercise of discretion of a statutory body. I would therefore say that the applicant's submission must fail.

In reference to the second submission, namely, that it is not within the power of Federal Parliament to amend the Constitution of Sarawak, it is necessary in my view to consider cl (5) of article 150 of our Constitution. Clause (5) reads as follows:"


(5) Subject to cl (6A), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution, or in the Constitution of Sarawak, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and 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 any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent."

Clause (6A) reads as follows:-"(6A). Clause (5) shall not extend the powers of Parliament with respect to any matter of Muslim law or the custom of the Malays, or with respect to any matter or native law or customs in a Borneo State; nor shall cl (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language."

In my view, cl (5) is very clear, that whilst a proclamation of emergency is in force, Parliament may make any law on any matter whether such matter is a matter in the Federal List, State list or Concurrent List or any other matter that may come under article 77. Article 77 deals with the residual power of legislation by the Legislature of a State.

It was urged as I understood it that the words "any matter" in line 4 of cl (5) above could only mean a matter within the Federal List. In my view that cannot be so because it is provided in cl (5) itself that it is to be subject to cl (6A) and cl (6A) specially exempts certain matters such as Muslim law or the customs of the Malays or the native law and customs in the Borneo States, which as can be seen from the 9th Schedule are matters in the State List.

It is obvious in my view, that if the words "any matter" were intended to be confined to a matter in the Federal List, cl (6A) would appear unnecessary.

It was also urged before us that any attempt to amend the Constitution of Sarawak would be contrary to article 41 of the Sarawak Constitution.

Article 41 reads as follows:-"


(1) Subject to the following provisions of this article the provisions of this Constitution may be amended by an Ordinance enacted by the Legislature but may not be amended by any other means.

We were asked to note the clear words "but may not be amended by any other means." It was also pointed out to us that these words did not appear in any other State Constitution of the Federation. But I think Sir Dingle Foot admitted later that this was not quite right because similar words or words to that effect also appear in the Constitutions of Johore and Kedah among others. In my view, however, 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 cl (5) for reasons I have stated.

It was also pointed out to us that under article 161E cl (2) no amendment to the Constitution of Sarawak may be made without the concurrence of the Governor of that State.

The said cl (2) reads as follows:


(2) No amendment shall be made to the Constitution without the concurrence of the Governor of the Borneo States or each of the Borneo States concerned, if the amendment is such as to affect the operation of the Constitution as regards, inter alia.


(c)matters with respect to which the Legislature of the State may (or Parliament may not) make laws and the executive authority of the State in those matters."

In my view, however, by reason of the words in cl (5) of article 150, namely "and 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," no concurrence of the Governor of Sarawak would appear to be necessary. For this reason this submission must also fail.

I do not think I need say anything in reference to the third submission, because in my view this judgment in reference to the first two submissions have sufficiently covered that point.

I would therefore say that this application should be dismissed.

JUDGMENT

Ong Hock Thye FJ:

I have had the advantage of reading the judgments of the learned Lord President and the learned Chief Justice of Malaya. With all respect I am unable to share their view that, under article 150 of the Federal Constitution, His Majesty the Yang di-Pertuan Agong is "the sole Judge" whether or not a situation calls for a Proclamation of Emergency, in other words, that "the circumstances which bring about a Proclamation of Emergency are non-justiciable."

His Majesty is not an autocratic ruler since article 40(1) of the Federal Constitution provides that "In the exercise of his functions under this Constitution or federal law the Yang di- Pertuan Agong i shall act in accordance with the advice of the Cabinet . . . ." In this petition, therefore, when it was alleged by the petitioner "that the said proclamation was in fraudem legis in that it was made, not to deal with a grave emergency whereby the security or economic life of Sarawak was threatened, but for the purpose of removing the petitioner from his lawful position as Chief Minister of Sarawak," there never was even the ghost of a suggestion that His Majesty had descended into the arena of Malaysian politics by taking sides against Sarawak's legitimate Chief Minister. With the greatest respect, it is unthinkable that His Majesty, as a constitutional ruler, would take on a role in politics different from that of the Queen of England.

The allegation of fraud was unmistakably made against the Cabinet as it was supported by particulars set out at length in the seven pages of para. 6 of the petition. If justice is not only to be done but be seen to be done, I do not believe that I can shirk my plain duty by turning a blind eye to the facts. It was repeatedly and publicly stated, in the plainest of terms, that it was on Cabinet advice that the Yang di-Pertuan Agong proclaimed the Emergency. This fact was never denied and no attempt was ever made by the Cabinet to disclaim responsibility. Neither of my learned brethren, however, considered this fact in the least bit relevant, since they said nothing about it. With all respect, therefore, I will not join in what I consider a repudiation of the Rule of Law, for I do not imagine, for a moment, that the Cabinet has ever claimed to be above the Law and the Constitution.

My learned brethren in their judgments never condescended to the material facts. With respect, I do not feel at liberty to wield the editorial blue pencil as they have done, when stating the facts of this, or indeed any other, case when the issue is a question of fact. It seems to me that the omission of material facts from consideration must lay the Judiciary exposed to reflections which I need not particularise. It has also been said that when a case is weak on the facts reliance must be placed most strongly on questions of law. Counsel for the Federation Government has plainly concentrated on the legal quibble that the ostensible decision to proclaim an Emergency being that of His Majesty himself, the question raised by the petitioner was on that account not justiciable. Disregarding the clear provisions of article 40(1), he has relied on two Indian cases, decisions of the Privy Council in 1931 and 1944, which have found favour with my learned brethren. Again with respect, I do not consider the ratio decidendi in those cases applicable herein because s. 72 of Sch IX of the Government of India Act, 1935, is manifestly not in pari materia with article 150 of the Federal Constitution, nor is the constitutional position of the Malaysian Cabinet comparable or similar to that of the Governor-General of India. Hence it is quite erroneous to argue by analogy from the Government of India Act to our Constitution as if those authorities were unquestionably conclusive. The plain fact is that the Governor-General of India, in the words of Viscount Simon L.C. in King-Emperor v. Benoari Lal Sarma & Ors. [1945] AC 14 (at p. 21) was not required by s. 72 "to state that there is an emergency, or what the emergency is, either in the text of the ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that an emergency exists." On the other hand, the inbuilt safeguards against indiscriminate or frivolous recourse to emergency legislation contained in article 150 specifically provide that the emergency must be one "whereby the security or economic life of the Federation or of any part thereof is threatened." If those words of limitation are not meaningless verbiage, they must be taken to mean exactly what they say, no more and no less, for article 150 does not confer on the Cabinet an untrammelled discretion to cause an emergency to be declared at their mere whim and fancy. According to the view of my learned brethren, however, it would seem that the Cabinet have carte blanche to do as they please " a strange role for the judiciary who are commonly supposed to be bulwarks of individual liberty and the Rule of Law and guardians of the Constitution.

Since the principal issue in this case turns on an allegation of fraud, supported by precise and full allegations of fact, as required by established rules of pleading (see Lawrance v. Lord Norreys 15 App Cas 210), it is incumbent on me, irrespective of the views of my learned brethren, to apply my mind to the facts of this case. I shall, therefore, set out all the undisputed facts herein which are relevant and material as affecting the determination of the question in issue. They are gathered from the petitioner's petition dated 23 February 1967, his affidavit of 9 May 1967 verifying the contents of such petition, the defence dated 28 April 1967 filed on behalf of the respondent the recital of relevant facts found by Harley Ag CJ (Borneo) as set out in his judgment in Kuching Civil Suit No. K 45 of 1966.* There being no appeal against such judgment, the findings of fact of course are res judicata and conclusive. In that case the present petitioner was the plaintiff.

On 22 July 1963 the petitioner was appointed Chief Minister of Sarawak. On 14 June 1966 there was a meeting of the Council Negri attended by the Speaker, the petitioner and 20 other members. Five members of the opposition were among the 21 members present, of whom three were ex officio. Bills were passed without opposition on that day: as the learned Acting Chief Justice found, "the fact remains that there has never been a motion of no confidence put in Council Negri, nor has there been any defeat of a Government bill."

On 14 June 1966 a letter addressed from Kuala Lumpur to the Governor of Sarawak by the Federal Minister for Sarawak Affairs (who was not a member of Council Negri himself) stated that "we the undersigned members of Council Negri ... no longer have any confidence in the Hon. Dato' Stephen Kalong Ningkan to be our leader in the Council Negri and to continue as Chief Minister," that the latter was bound by article 7(1) of the Sarawak State Constitution to tender the resignation of members of the Supreme Council and concluding with a request that the Governor take appropriate action under that article as well as by appointing a new Chief Minister pursuant to article 6(3) of the Constitution. A propos of this Harley Acting CJ's finding was:-


It is accepted that this letter was signed by 21 persons who are members of Council Negri (There are 42 members in all of Council Negri plus the Speaker)."

On 16 June the Governor's private secretary wrote to the petitioner that the Governor being satisfied, on the representation of the majority in the Council Negri that the petitioner had ceased to command their confidence, he, the petitioner, was requested to present himself forthwith to tender his resignation. On 17 June the petitioner replied, regretting his inability to attend at the Astana the previous evening, pointing out that "the proceedings of the Council Negri held on 14 June 1966 do not appear to support His Excellency's view that I have lost the confidence of the majority of its members", suggesting that "the proper course to resolve any doubts regarding my ability to command the confidence of the majority of Council Negri members is to arrange for the Council to be convened in order that the matter can be put to the constitutional test" and undertaking to abide by its outcome. He also asked for the names of Council members who had supported the representations.

On the same day, 17 June a letter from the Governor informed the petitioner that he and other members of the Supreme Council had ceased to hold office, and that Penghulu Tawi Sli had been appointed Chief Minister, with effect in both cases forthwith. The learned Acting Chief Justice's finding in this connection was that "it was only in this letter and after the dismissal that the names were provided and the names that were provided are a list of 21 names and are the same names that appear on the letter of 14 June."

The petitioner's reply, also of the same date, expressed surprise at the action taken by the Governor because, to quote the petitioner:


It is not true that I have refused to tender my resignation" the question of tendering my resignation did not arise until after I received a reply to my letter requesting for the names of the members of the Council Negri.


It is clear from the list of names forwarded to me that the majority of the Council Negri members are not against me, as 21 cannot be the majority of 42.

On June 17 the Sarawak Government Gazette Extraordinary announced that the petitioner had ceased to be Chief Minister of Sarawak and that the four other persons therein named had ceased to be members of the Supreme Council. Another announcement proclaimed the appointment of Penghulu Tawi Sli as Chief Minister.

In the result the petitioner commenced action in the High Court at Kuching for a declaration that he was still Chief Minister an for an injunction restraining the new appointee from acting as Chief Minister. In his judgment Harley Acting CJ held that "article 7 (3) clearly means that the Governor may dismiss Ministers but may not dismiss the Chief Minister in any circumstances," and he went on as follows:


If the Constitution, however, should be construed as giving to the Governor a power to dismiss, that power can only be exercised" and I think that this was conceded by Mr. Le Quesne " when both


(a) the Chief Minister has lost the confidence of the House, and


(b)the Chief Minister has refused to resign and failed to advise a dissolution.


I have already dealt with (a); as regards (b), I do not think that the Chief Minister of Sarawak was ever given a reasonable opportunity to tender his resignation or to request a dissolution. He was never even shown the letter on which the dismissal was based until Court proceedings started. Although it is true that at the moment of dismissal a list of signatories was sent to him with the letter from the Governor dated 17 June that list and that letter were typed on the same date as the publication in the Gazette of the dismissal of the plaintiff, who was given no time at all to consider the weight or effect of the move against him. Plaintiff did not refuse to resign: he merely expressed doubts whether in fact he had ceased to command a majority and requested 'that the matter be put to the constitutional test' . . . . in the instant case, the Chief Minister has not refused to resign, and there is no power to dismiss him. He has already indicated through his Counsel that he was prepared to consider a dissolution and presently an election. That political solution may well be the only way to avoid a multiplicity of legal complications.

In the event this view of the learned Acting Chief Justice turned out truly prophetic. Judgment was given in favour of this petitioner on 7 September 1966. On 14 September His Majesty the Yang di-Pertuan Agong proclaimed a State of Emergency in Sarawak. On 15 September the Deputy Prime Minister made a statement at a press conference which was reported in Ministry of Information (Kuching) release headed SITUATION IN SARAWAK, bearing number PEN. 9/ 66/207 (INF). The gist of that statement was repeated subsequently in Parliament; so it need not detain me further by quoting therefrom.

In Parliament on Monday, 19 September 1966 the Deputy Prime Minister made a statement on the proclamation of the State of Emergency in Sarawak. [In his statement the Deputy Prime Minister recapitulated at length the events that led to the constitutional impasse and the contents of the White Paper giving details on Communist subversive activities in Sarawak.]

There is of course, another side to the picture so ably and forcefully presented by the Deputy Prime Minister. The principles of natural justice should apply not only in the Courts but also in the proceedings of Parliament, of which judicial notice may be taken. At the second reading of the bill, Mr. DR Seenivasagam, the opposition member for Ipoh, replied to the points made by the Deputy Prime Minister. [Mr. D R Seenivasagam expressed the view that the proclamation of emergency made in 1964, which was still in force, gave the Government all necessary powers to deal with any situation so as to render the second proclamation superfluous.]

There was more in the same vein said by other members in opposition to the bill, but the points made generally were, first, that the petitioner was "well within his rights to choose to stay until 14 December 1966, when it will be mandatory on his part to convene the next meeting of the Council Negri"; secondly, that action be stayed because the petitioner had "fixed a meeting of all the five Divisional Advisory Councils on 26 September 1966. For if these five Divisional Advisory Councils, which are the electoral colleges which elect the Council Negri members, express confidence in the Cabinet of Dato' Stephen then it makes a hollow mockery of the Alliance claim that they command the majority vote in the Council"; and thirdly, a suggestion emanating from the petitioner "that an impartial Commission of Enquiry be appointed to go to Sarawak immediately to" investigate if there is any emergency in the State:" (see speech of Dr Tan Chee Khoon). The solutions proposed to settle the impasse included dissolution of the Council Negri, the Divisional Advisory Councils and District Councils and the acceleration of a general election; recourse, in the meantime, to a Caretaker Government and, alternatively, a referendum to test the popularity of the petitioner.

The bill was duly passed by a majority of 118 to nil, with no absention. On 23 September 1966 the Governor summoned a meeting of the Council Negri, pursuant to the amendments made in the State Constitution, and by a majority of 25 to nil, with three absentions, they passed a vote of no confidence in the petitioner. From the above recital of events that have passed into history it is perhaps not at all surprising that he felt aggrieved, not so much, perhaps, over his dismissal, as by the manner in which it was in the first place achieved. The result has been further proceedings in Kuching and now in this Court.

Before I deal with the issue of fact, I would first of all state plainly what I conceive to be the duty and function of the judiciary. Even though inconveniences are liable to flow from a written Constitution, as happened in this case, it is outside the competence of the Court to concern itself in any way with polities or the rights and wrongs in the manoeuvres of political factions. This is not an Elections Court. As Viscount Simon L.C. said in King- Emperor v. Benoari Lal Sarma & Ors. [1945] AC 14 at p. 28,


Their Lordships feel bound to point out that the question whether the ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or policy.

The crucial question here is whether the proclamation was made (a) not to deal with a grave emergency whereby the security or economic life of Sarawak was threatened but (b) for the purpose of removing the petitioner from the office of Chief Minister of Sarawak. In my opinion there can be no two views that the primary objective was the removal of the petitioner. The Deputy Prime Minister himself said so in unambiguous terms. This finding of fact, nevertheless, does not ipso facto resolve the question entirely. My view, rightly or wrongly, is that this primary objective is not necessarily incompatible with a genuine concern - whether on adequate grounds or not is not for me to say - felt by the Cabinet as regards the security situation in Sarawak. I think it is true to say that the lessons of the twelve-year Emergency in Malaya had not been forgotten. Now, Sarawak naturally cannot be compared with more advanced countries that possess a more sophisticated electorate and electoral system, in which political squabbles pose no problems imperilling national security. It may very well be true that political instability in Sarawak could possibly have serious repercussions on the security of the State, although some may quite honestly consider it improbable or farfetched. Therefore, after the most anxious consideration of the matter, on both sides, I have come to the conclusion that I am unable to say, with any degree of confidence, that the Cabinet advice to His Majesty was not prompted by bona fide considerations of security. I am also equally unable to gauge the degree or extent which such concern for security bears on such advice in relation to the Cabinet's primary objective. At any rate, the Minister for Home Affairs, who should be the best informed, had this to say:


I would be guilty, and I will be failing in my duty if, for example, I were to wait for three months, and during those three months the Communists got the upper hand through political means, because we know that one of the objectives of the Communists is to erode the fabric of the Government, to go into the political parties, and we have a great deal of evidence there on this Communist threat to Sarawak.

Consequently, I am of opinion that the petitioner has failed to make out a case to my satisfaction for holding that the Proclamation of Emergency was invalid as being in fraudem legis. This decision on the facts, let me state it plainly, does not mean that I agree with the contentions of learned Counsel for the Federal Government. My view, in general, is that the acts of the Executive which directly and injuriously affect the person or property or rights of the individual should be subject to review by the Courts. In particular, when an emergency is proclaimed by Parliament, it is still open to challenge in Court on the ground that it is ultra vires where cause can be shown.

In the petition there is also an alternative prayer, for an order declaring that ss. 3, 4 and 5 of the measure known as The Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 are invalid, null and void and of no legal force and effect. I would apologise to Sir Dingle Foot for not discussing his arguments at length on this point. Putting it briefly, it seems to me - although, not being well-versed in constitutional law, I hold no strong views on this question - the overriding consideration of an emergency which justifies an amendment of the Federal Constitution itself must no less justify an amendment of the State Constitution, so far as may be strictly necessary. It may be deplored, as much as, for instance, preventive detention, but extraordinary times have justified extraordinary measures, with only good sense to serve as a restraint.

I would conclude, for the benefit of Counsel for the Federal Government, by adding that I respectfully subscribe to the views expressed on Crown privilege by Lord Denning MR in the recent case of Conway v. Rimmer [1967] 1 WLR 1031, but even so, Counsel's attempt herein to shut out the facts from the purview of this Court seems to me hopelessly futile for the simple reason that, in the instant case, full reasons had been given for the Cabinet decision which are within the cognisance of this Court. This is vastly different from the category of cases in which the grounds of decision of executive action had been withheld Furthermore, it is my view that the ratio decidendi in Robinson v. State of South Australia (No. 2) [1931] AC 704 is one binding on this Court.

Finally, as to costs, Since there are no merits whatsoever in the argument of Counsel for the Federal Government - indeed, his rather surprising contention was that the Cabinet action was purely a matter of Party discipline - I have given the question of costs special consideration and propose that the parties bear their own costs.

Application dismissed.

Dato' Stephen Kalong Ningkan's case re-emerges in Perak

I have been away for more than two weeks and practically for the last five days I was out of reached. When I came back yesterday I found that the state of Perak was and still is in turmoil.

The irony is, there was a striking similarity with the case of Dato' Stephen Kalong Ningkan, which has never been overruled, which I have re-produced below in verbatim from the law report.

Another irony is that, in Ningkan's case, Tun Abdul Razak was behind the scene. This time in Perak, his son, Najib Abdul Razak is behind the scene. The name of Chief Minister Minister of Sarawak, who was the victim of wrongful dismissal began with letter "N" (Ningkan)and the name of the Chief Minister of Perak, who is the victim of the current wrongful dismissal also begins with letter "N" (Nizar).


It is pretty obvious His Royal Highness, the Sultan of Perak, both under Perak's constitution or by tradition of constitutional convention, HAS NO POWER to remove the Chief Minister/Menteri Besar of Perak. HRH can only appoint but not remove. Under Article 16(6) of the Constitution of the State of Perak HRH only possess the power to remove any member of the Executive Council BUT NOT THE MENTERI BESAR.

On matters of appointment of Menteri Besar the Constitution of the State of Perak was crafted in similar language. There was no provision for the dismissal of the Chief Minister by the Ruler (the Sultan). The Chief Minister can only be removed by a vote of no-confidence taken in the Dewan Undangan Negeri (DUN). If he is defeated in the DUN through the motion of vote of no confidence, the Menteri Besar must tender his resignation and the rest of his Executive Councillors en bloc or dissolves the DUN and calls for a fresh election. But if the ruler refuses to give consent to dissolve the DUN, the Chief Minister has no choice but to tender his resignation.

By way of constitutional convention the Ruler should not withhold his consent to dissolve the DUN. But if he does, he is also not wrong in law or acting unconstitutionally. He is only defying the constitutional convention, which in essence will subject himself to legitimate criticism and controversy. Such criticism will definitely cause HRH to suffer disrepute.

Therefore, in my opinion, as someone who is quite well-versed in constitutional law, HRH the Sultan of Perak has acted unconstitutionally in removing the Chief Minister. HRH being a constitutional monarch does not possess unfettered freedom in the exercise of his constitutional duty. One of that is the removal of the Chief Minister.

Dismissal of Menteri Besar Mohamad Nizar by HRH Sultan Azlan Shah was therefore unconstitutional, ulra vires the Constitution, null and void and of no effect. Mohamad Nizar Jmaluddin is therefore still the lawful Chief Minister unless and until he is defeated in a vote of no-confidence in the State Legislative Assembly (DUN). The appointment of Zambry Abdul Kadir as the purported new Menteri Besar was therefore unlawful and unconstitutional, null and void and of no effect as the State of Perak cannot have two Chief Ministers simultaneously.

The fact that Barisan Nasional believes it has the majoirty in the DUN does not give it an automatic right to form the government. Once there is already a Menteri Besar, it is no longer for the Sultan to determine which member of the DUN commands the confidence of the majority of the DUN, but for the DUN members themselves to express the same through a motion of confidence/no-confidence in the DUN. If HRH the Sultan refuses to dissolve the DUN then he must convene the DUN to sit and vote of no-confidence be taken after a proper motion has been tabled. As for now there is no doubt Mohamad Nizar is the rightful and lawful Chief Minister of the State of Perak.

---------------------------------------

[1966]1 LNS 186


STEPHEN KALONG NINGKAN V. TUN ABANG HAJI OPENG AND TAWI SLI

FEDERAL COURT [KUCHING]
OCJ HARLEY A-G (BORNEO), CJ
[KUCHING CIVIL SUIT NO. K 45 OF 1966]
7 SEPTEMBER 1966

JUDGMENT

Harley A-G (Borneo) CJ:

The plaintiff was appointed Chief Minister of Sarawak on 22 July 1963. On 14 June 1966 there was a meeting of Council Negri at which, apart from the Speaker, plaintiff and twenty other members were present. Five members of the Sarawak United Peoples Party and one Machinda member, who normally behave as an opposition, were present among the total of 21 members. Of the 21 members, three were ex officio. Bills were. passed without opposition on that day. One of the members present, Abang Haji Abdulrahim bin Abang Haji Moasili, who gave evidence in this case, was a supporter of the plaintiff on 14 June and indeed up to 16 June. He says that as from the evening of 16 June he would not have supported the plaintiff. The fact remains that there has never been a motion of no confidence put in Council Negri, nor has there been any defeat of a Government bill.

On 14 June a letter was addressed from Kuala Lumpur to the Governor. It is accepted that this letter was signed by 21 persons who are members of Council Negri. (There are 42 members in all of Council Negri plus the Speaker.) The author of the letter was Tan Sri Temenggong Jugah, Federal Minister for Sarawak Affairs (not a member of Council Negri). The letter reads as follows:

Letter No. 1

"TOP SECRET


c/o YB Enche Thomas Kana,


Dewan Ra'ayat.


Kuala Lumpur.


14hb June 1966.


His Excellency,


The Governor of Sarawak,


The Astana,


KUCHING.


Your Excellency.


We, the undersigned members of Council Negri Sarawak, beg to inform your Excellency that we no longer have any confidence in the Hon Dato' Stephen Kalong Ningkan to be our leader in the Council Negri and to continue as Chief Minister.


2. Since the Hon. Dato' Ningkan has mill to command the confidence of the majority of the members of the Council Negri, he is bound by article 7(1) of the Constitution of the State of Sarawak to tender the resignation of the members of Supreme Council.


3. We respectfully request your Excellency to take appropriate action under that article and to appoint a new Chief Minister pursuant to article 6(3) of the Constitution.


Yours faithfully,


(Signed) T JUGAH.


(A list of names was attached.)

In the list attached to this letter, 25 names are set out. Against 21 of these names are signatures (in one case the signature is a "chop"). This letter was never shown to the plaintiff until after Court proceedings started. it was handed to the Governor (defendant 1) in Kuching on 16 June.

The next letter from the Governor's private secretary to the plaintiff reads as follows:

LetterNo. 2


ASTANA,


KUCHING, SARAWAK.


Ref: GOV/SEC/144 16 June 1966.


To The Honourable Dato' Stephen Kalong Ningkan, PNBS PDK Chief Minister,


Sarawak.


Dato',


I am directed by his Excellency to inform you that his Excellency has received representations from members of Council Negri constituting the majority of the council, informing his Excellency, and his Excellency is satisfies, that you have ceased to command their confidence.


2. In order that the provisions under articles 7(1) and 6(3) of the Constitution of the State of Sarawak be complied with, his Excellency requires your presence forthwith at the Istana upon receipt of this letter to tender your resignation.


I have the honour to be,


Sir,


Your obedient servant,


(Signed) ABDUL KARIM BIN ABOL,


Ag Private Secretary to


HE the Governor."

In answer to the above the plaintiff replied:

LetterNo. 3


Chief Minister,


Kuching,


Sarawak.


Malaysia.


17 June 1966.


Ref: CM 1/66


A-G Private Secretary to


His Excellency the Governor,


The Astana,


Kuching.


Sir,

GOV/SEC/144 dated 16 June 1966


I have the honour to refer to your above letter received by me late last evening and regret that I am temporarily indisposed and unable to present myself at the Astana last night.


With deepest respect, the proceedings of the meeting of the Council Negri held on 14 June 1966, do not appear to support his Excellency's view that I have lost the confidence of the majority of it's members. In these circumstances, I shall be grateful if I may be supplied with the names of those council members who support the representations referred to in your letter.


I shall be grateful if you will convey to his Excellency that, in my view, the proper course to resolve any doubts regarding my ability to command the confidence of the majority of Council Negri members is to arrange for the council to be convened in order that the matter can be put to the constitutional test.


In addition to believing that this represents both the democratic course and the best one for Sarawak and Malaysia, it is one which I believe would receive the support of the majority of the people of this State and one whose out-come I would be prepared to abide by.


I am,


Sir,


Your obedient servant,


(Signed) SK NINGKAN,


Dato' Stephen Kalong Ningkan,


Chief Minister of Sarawak."

The vital letter comes next:

LetterNo. 4


ASTANA,


KUCHING, SARAWAK.


GOV/SEC/144 17 June 1966.


To


The Hon'ble Dato' Stephen Kalong Ningkan, PNBS, PDK Kuching, Sarawak.


Dear Dato',


I have received your letter, Ref CM 1/66 dated 17 June 1966 in reply to my private secretary's letter sent to your yesterday. It is clear from the contents of your letter that you have refused to tender the resignation of the members of the Supreme Council in accordance with art. 7(1) of the Constitution of the State of Sarawak, although you have ceased to have the confidence of a majority of the members of the Council Negri. I, therefore, declare that you and other members of the Supreme Council have ceased to hold the office with effect forthwith.


2. I am now appointing the Hon'ble Penghulu Tawi Sli. ABS Chief Minister of Sarawak with effect for with.


3. As requested, I forward herewith a list of the name of members of the Council Negri who have made representations to me in person that they have ceased to have confidence in you.


Yours sincerely.


Enc: (Signed) TUN ABANG HAJI OPENG


Governor."

The Governor is the first defendant in the present suit and the Honourable Penghulu Tawi Sli is the second defendant. Mr. Kellock has made the point that it was only in this letter and after the dismissal that the names were provided and the names that were provided are a list of 21 names and are the same names that appear on the letter of 14 June.

Again on 17 June the plaintiff wrote:

LetterNo. 5


'Pangau Libau'


Kuching.


17 June 1966.


His Excellency the Governor,


Tun Abang Haji Openg, SMN PNBS OBE


Astana,


Kuching.


Your Excellency,


I have received, with surprise, your letter (Ref: GOV/SEC/144) of today's date.


It is not true that I have refused to tender my resignation - the question of tendering my resignation did not arise until after I received a reply to my letter requesting for the names of the members of the Council Negri.


It is clear from the list of the names forwarded to me that the majority of the Council Negri members are not against me, as 21 cannot be the majority of 42.


With the utmost respect I have to inform your Excellency that if you appoint the Hon'ble Pengulu Tawi Sli as Chief Minister you would be acting unlawfully and I will have no option but to question my removal in the Court.


I am, Sir,


Your obedient servant,


(Signed) SK NINGKAN.


(Dato' Stephen Ralong Ningkan)".

On 17 June the Sarawak Government Gazette Extraordinary announced:

Document No. 6


No 117


THE CONSTITUTION OF THE STATE OF SARAWAK


It is hereby published for general information that, with effect from 17 June 1966, the Honourable Dato' Stephen Kalong Ningkan, PNBS, PDK has ceased to be the Chief Minister of Sarawak and the following have ceased to be members of the Supreme Council:-


The Honourable Dato' James Wong Kim Ming, PNBS


The Honourable Dato' Abang Othman bin Abang Haji Moasili. PNBS


The Honourable Dato' Dunstan Endawi anak Enchana, PNBS


Teo Kui Seng, PNBS


No 1118


THE CONSTITUTION OF THE STATE OF SARAWAK


It is hereby published for general information that the Governor has, in exercise of the powers conferred upon him by article 6(8) of the Constitution of the State of Sarawak, appointed by Instrument under the Public Seal dated 17 June 1966. the Honourable Penghulu Tawi Sli, ABS, to be the Chief Minister of Sarawak."

The plaintiff claims:


1. A declaration of Court that the first defendant as Governor of Sarawak acted unconstitutionally by not complying with the provisions of the Constitution of the State of Sarawak when he declared on 17 June 1966, that the plaintiff has ceased to hold the office of Chief Minister of Sarawak.


2. A declaration of Court that the first defendant should not have relieved the plaintiff from the office of Chief Minister of Sarawak on the ground of representations made to him on 16 June 1966, by members of the Council Negri who preferred to boycott the session of the Council Negri on 14 June 1966, on the ground of alleged loss of confidence in the Chief Minister.


3. A declaration that his purported dismissal by the first defendant was ultra vires, null and void.


4. A declaration that the plaintiff is and has been at all material times Chief Minister of the State of Sarawak.


5. An injunction restraining the second defendant from acting as the Chief Minister of the State of Sarawak.

Respecting this claim, the following articles of the Constitution are relevant: article 1, (1) and (2); article 5; article 6 (1), (2) and (3) article 7 (1), (2) and (3); article 10 (1) and (2) article 11; article 13; article 14(1) (a) to (d) and (2) ; article 21 (1) and (2); article 24 (3); article 41 (1) and (2); article 44 (5).

I need not set out all these articles, but would draw particular attention to the following:

"Governor of the State


1. (1) There shall be a Governor of the State, who shall be appointed by the Yang di-Pertuan Agong acting in his discretion but after consultation with the Chief Minister.


(2) The Governor shall be appointed for & term of four years but may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong, and may be removed from office by the Yang di-Pertuan Agong in pursuance of an address by the Council Negri supported by the votes of not less than two-thirds of the total number of the members

"Executive authority


5. The executive authority of the State shall be vested in the Governor but executive functions may by law be conferred on other persons."

"The Supreme Council


6. (1) There shall be a Supreme Council to advise the Governor in the exercise of his functions.


(2) The Supreme Council shall consist of a Chief Minister and not more than eight nor less than four other members appointed in accordance with cl (2).


(3) The Governor shall appoint an Chief Minister a member of the Council Negri who in his judgment in likely to command the confidence of a majority of the members of the Council Negri and shall appoint the other members in accordance with the advice of the Chief Minister from among the members of the Council Negri.


(6) The Supreme Council shall be collectively responsible to the council Negri."

"Tenure of office of members of Supreme Council


7. (1) If the Chief Minister to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.


(2) A member of the Supreme Council may at any time resign his office by writing under his hand addressed to the Governor, and a member of the Supreme Council other than the Chief Minister shall also vacate his office if his appointment thereto in revoked by the Governor acting in accordance with the advice of the Chief Minister.


(3) Subject to cll (1) and (2), a member of the Supreme Council other than the Chief Minister shall hold office at the Governor's pleasure."

"Governor to act on advise


10. (1) In the exercise of his functions under this Constitution or any other law, or as a member of the Conference of Rulers, the Governor shall act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the council, except as otherwise provided by the Federal Constitution or this Constitution; but shag be entitled, at his request, to any information concerning the government of the State which in available to the Supreme Council.


(2) The Governor may act in his discretion in the performance of the following functions- OPENG


(a) the appointment of a Chief Minister;


(b) the withholding of consent to a request for the dissolution of the Council Negri."

"Procedure of Council Negri


24. (1)..


(2)..


(3) Subject to cll (5) and (6) and to cl (2) of article 41, the Council Negri shall, if not unanimous, take its decision by a simple majority of members voting; and the Speaker or member presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case."

"Interpretation


44. (1) ..


(2) ..


(3) ..


(4) ..


(5) The Interpretation Ordinance, as in force at the commencement of this Constitution, shall apply 2 for the purpose of interpreting this Constitution and otherwise in relation thereto as it applies for the purpose of interpreting and otherwise in relation to a written law within the meaning of that Ordinance."

Section 21 of the Interpretation Ordinance (Cap. 1) reads as follows:- "Power to appoint includes power to dismiss


21. Whenever any written law confers upon any person or authority a power to make appointments to any office or place, the power shall be construed as including a power to dismiss or suspend any person appointed and to appoint another person temporarily in the place of any person so suspended, or in place of any sick or absent holder of such office or place:


Provided that, where the power of such person or authority to make such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of dismissal shall only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority."

Section 2 (1) of the same Ordinance reads:-


Application


2. (1) Save where the contrary intention appears the provisions of this Ordinance shall apply to this Ordinance and to any written law now or hereafter in force made by competent authority in Sarawak and to any instrument made or issued thereunder."

The following definition from the Interpretation Ordinance was not cited by Counsel on either side:


Governor in his discretion and 'Governor acting in his discretion' mean that, in respect of the power concerned, the Governor shall not be obliged to consult with the Supreme Council in the exercise thereof."

The main arguments for the plaintiff are that (a) the Governor has no power of dismissal, and (b) if he has a power or a discretion it must not be exercised arbitrarily or capriciously.

The defence contends that there Is no question of the Governor's power being merely discretionary; in certain circumstances - particularly where there are infractions of the Constitution for which no sanction or remedy is provided - the Governor has not only a power but a duty to act. The defence further contends that lack of confidence describes a state of mind. (Article 7(1).

Whether a Chief Minister has or has not ceased to command the confidence of a majority is a matter for the Governor's personal assessment. Moreover, "the rules for the construction of statutes are like those which apply to the construction of other documents, especially as regards one crucial rule, viz that, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat." MPHASIS v. Stovin [1889], 22 QBD 513 at p. 517). "If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council." (Article 7 (1) ). The first question which arises is how the lack of confidence is to be expressed: can such lack of confidence be assessed only by a vote on the floor of the House (if I may use this word in its general application) ? The Federal Supreme Court of Nigeria was of opinion that the constitutional method (in Nigeria) of measuring lack of confidence required a decision or resolution on the floor of the House. (Adegbenro v. Akintola [1963] 3 WLR 63 distinguished). The Privy Council took an opposite view and held that there was no limitation as to the material by which lack of confidence should be assessed. Does the same rule of construction apply in Sarawak as in Nigeria? I will not apologise for quoting at length from the case of Adegbenro v. Akintola, and I would draw attention at the start to the following passage (at p. 72): "...there are many good arguments to discourage a Governor from exercising his power of removal except upon indisputable evidence of actual voting in the House .... " If one starts, as I think one should start, with the rule that a vote on the floor of the House is the normal test of lack of confidence, then one is in a better position to consider the exceptions to the rule. Now I cite from Adegbenro v. Akintola:


By s. 33 of the Constitution of Western Nigeria: '(10) .... the Ministers of the Government of the Region shall hold office during the Governor's pleasure: Provided that - (a) the Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support of a majority of the members of the House of Assembly; .... '


The Governor of the Western Region of Nigeria, following upon the receipt of a letter signed by 66 members of the House of Assembly - which was composed of 124 members - stating that they no longer supported the Premier, the present respondent, removed him from office and appointed the appellant in his place. There had been no vote adverse to the respondent in the House prior to his removal. Thereafter, in proceedings instituted by the respondent challenging the Governor's right to remove him. the following issues were referred by the High Court of the Western Region to the Federal Supreme Court of Nigeria Pursuant to s. 108 of the Constitution of the Federation: '(1) Can the Governor validly exercise power to remove the Premier from office under s. 33, subs (10), of the Constitution of Western Nigeria without prior decision or resolution on the floor of the House of Assembly showing that the Premier no longer commands the support of a majority of the House? (2) Can the Governor validly exercise power to remove the Premier from office under s. 33(10) .... on the basis of any materials or information extraneous to the proceedings of the House of Assembly?'


The Federal Supreme Court answered the first question in the negative, thus holding that the respondent had not been validly removed from office, and found it unnecessary to answer the second question. On appeal by the appellant .... Held (1)....(2) There was nothing either the scheme or provision of the Constitution of Western Nigeria which legally precluded the Governor from forming his opinion on the basis of anything but votes formally given on the door of the House. By the use of the words 'it appears to him' in s. 33(10) the Judgment as to the support enjoyed by a Premier was left to the Governor's


own assessment and there was no limitation as to the material on which he might resort for the purpose. Accordingly, both the questions referred to the Federal Supreme Court should be answered in the affirmative.


Decision of the Federal Supreme Court of Nigeria reversed."

The judgment of their Lordships was delivered by Viscount Radcliffe:


.... The question to which an answer has to be found is of obvious importance, but it lies, nevertheless, within a very small compass. Its decision turns upon the meaning to be attached to the wording of s. 33(10) of the Constitution of Western Nigeria, read, an it should be, in the context of any other provisions of the Constitution that may legitimately influence its meaning.


It in clear, to begin with, that the Governor is invested with some power to dismiss the Premier. Logically, that power is a consequence of the enactment that Ministers shall hold office during the Governor's pleasure, for, subject to the saving conditions of provisos (a) and (b) that follow, the Governor has only to withdraw his pleasure for a Minister's tenure of office to be brought to an end. Where the Premier's office in concerned it in so (a) that limits the Governors power to withdraw his pleasure constitutionally, for by that proviso he is precluded from removing the Premier from office 'unless it appears to him that the Premier no longer commands the support of a majority of the members of the House of Assembly.' By these words therefore, the power of removal is at once recognised and conditioned: and, since the condition of constitutional action has been reduced to the formula of these words for the purpose of the written Constitution, it is their construction and nothing else that must determine the issue.


What, then, is the meaning of the words "the Premier no longer commands the support of a majority of the member"? It has been said, and said truly, that the phrase is derived from the constitutional understandings that support the unwritten, or rather partly unwritten, Constitution of the United Kingdom. It recognises the basic assumption of that Constitution, as it has been developed, that, so long " the elected House of Representatives is in being, a majority of its members who are prepared to act to together with some cohesion is entitled to determine the effective leadership of the Government of the day. It recognises also one other principle that has come to be accepted in the United Kingdom: that, subject to questions as to the right of dissolution and appeal to the electorate, a Prime Minister ought not to remain office as such once it has been established that he has ceased to command the support of a majority of the House. But, when that is said, the practical application of these principles to a given situation if it arose in the United Kingdom, would depend less upon any simple statement of principle than upon the actual facts of that situation and the good sense and political sensitivity of the main actors called upon to take part.


It is said, too, that the 'support' that in to be considered is nothing else than support in the proceedings of the House itself, and with this proposition also their Lordships are in agreement. They do not think, however, that it is in itself a very pregnant observation. No doubt, everything comes back in the end to


the question what action the members of a party or a group or a combination are resolved to take in proceedings on the floor of the House; but in democratic politics speeches or writings outside the House, party meeting, speeches or activities inside the House short of actual voting are all capable of contributing evidence to indicate what action this or that member has decided to take when and if he is called upon to vote in the House, and it appears to their Lordships somewhat unreal to try to draw a firm dividing line between votes and other demonstrations where the issue of 'support' is concerned.


This, indeed, is the crux of the question that has now been raised. The respondent maintains, and it is implied in the decision that he has obtained from the Federal Supreme Court, that the Governor cannot constitutionally take account of anything in the matter of 'support' except the record of votes actually given on the floor of the House. Consequently, it is said, his action in removing the first respondent from the Premiership on the strength, it appears, of the letter address to him by the 66 members of the House referred to and without waiting until there had been an adverse vote in the House itself was not within the powers conferred upon him by the Constitution.


The difficulty of limiting the statutory power of the Governor in this way is that the limitation is not to be found in the words in which the makers of the Constitution have decided to record their description of his powers. By the words they have employed in their formula, 'it appears to him', the judgment as to the support enjoyed by a Premier is left to the Governors own assessment and there is no limitation as to the material on which he is to base his judgment or the contacts to which he may resort for the purpose. There would have been no difficulty at all in so limiting him if it had been intended to do no. For instance, he might have been given power to act only after the passing of a resolution of the House 'that it has no confidence in the Government of the Region', the very phrase employed in an adjoining section of the Constitution (see s. 31 (4), proviso (b) ) to delimit the Governor's power of dissolving the House even without the Premier's advice. According to any ordinary rule of construction weight must be given to the fact that the Governor's power of removal is not limited in such precise terms as would confine his judgment to the actual proceedings of the House, unless there are compulsive reasons, to be found in the context of the Constitution or to be deduced from obvious general principles, that would impose the more limited meaning for which the respondent contends.


Their Lordships have not discovered any such reasons. It is one thing to point out the dangers of a Governor arriving at any conclusion "to his Premier"s support in the House except upon the incontrovertible evidence of votes recorded there on some crucial issue. There are indeed such danger Expressions of opinion, attitude or intention upon such a delicate matter may well prove to be delusive. He may Judge the situation wrongly and so find himself to have taken a critical step in a direction which is proved to be contrary to the wishes of the majority of the House or of the electorate. Again, if he is not to rely an his Premier for advice as to the balance of support in the House, he is likely to And that he is in effect consulting indirectly the views of opposition leaders who may turn out


in the event to be no more than an opposition: or he will find himself backing the political judgments conveyed to him by his own private advisers against the political judgment of the Premier himself


All these are real dangers which any Governor proposing to act under his power of removal would need to bear in mind, since, if he ignores them, he would run the risk of placing the constitutional sovereign power, whose representative he in, in conflict with the will of the elected House of Representatives whose majority is for the time being expressed in the person of the Premier. Anyone familiar with the constitutional history and development of the United Kingdom would naturally dwell upon these aspects of the Sovereign's position, if he was invited to advise a Governor as to the circumstances and occasions upon which he could wisely exercise his power of removal.


But, while there may be formidable arguments in favour of the Governor confining his conclusion on such a point to the recorded voting in the House, if the impartiality of the constitutional sovereign in not to be in danger of compromise, the arguments are considerations of policy and propriety which it in for him to weigh on each particular occasion: they are not legal restrictions which a Court of law, interpreting the relevant provisions of the Constitution, can import into the written document and make it his legal duty to observe. To sum up, there are many food arguments to discourage a Governor from exercising his power of removal except upon indisputable evidence of actual voting in the House, but it is nonetheless impossible to say that situations cannot arise in which these arguments are outweighed by considerations which afford-to the Governor the evidence he is to look for, even without the testimony of recorded votes.


Another argument has been advanced to the effect that the Nigerian Constitutions are modelled on the current constitutional doctrines of the United Kingdom, and, since the British Sovereign would not be regarded as acting with constitutional propriety in dismissing a Prime Minister from office without the foundation of an adverse vote on a major issue in the House of Commons, so the Governor in Western Nigeria must similarly be treated as precluded from exercising his power of removal in the absence of a vote of the awe kind. This approach to the matter appears to their Lordships to have had some influence upon the view taken by the majority of the Federal Supreme Court in this case, and, since it seems capable of conveying an implication that could be misleading in other situations apart from the present one, their Lordships wish to make two observations upon it.


The first is that British constitutional history does not offer any but a general negative guide as to the circumstances in which a Sovereign can dismiss a Prime Minister. Since the principles which are accepted today began to take shape with the passing of the Reform Bill of 1832 no British Sovereign has in fact dismissed or removed a Prime Minister, even allowing for the ambiguous exchanges which took place between William IV and Lord Melbourne in 1834. Discussion of constitutional doctrine bearing upon a Prime Minister's loss of support in the House of Commons concentrates therefore upon a Prime Minister's duty to ask for liberty to resign or for a dissolution, rather than upon the Sovereign's right of removal, an exercise of which is not treated as being within the scope of


practical politics. In this state of affairs it is vain to look to British precedent for guidance upon the circumstances in which or the evidential material upon which a Prime Minister can be dismissed, where dismissal is an actual possibility: and the right or removal which is explicitly recognised in the Nigerian Constitutions must be interpreted according to the wording of its own limitations and not to limitations which that wording does not import.


. ... it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution."

In my view the Privy Council's judgment relating to the Constitution of Nigeria does not apply to the Constitution of Sarawak because of the following distinguishing features and circumstances:


(1) In the Nigerian case it was mathematically beyond question that more than half the House no longer supported the Premier.


(2) The measurement in Nigeria was a measurement of "support", not of "confidence". The Sarawak Constitution is dated subsequent to the decision of Adegbenro v. Akintola, and it does seem to me that the "confidence" of a majority of members, being a term of art, may imply reference to a vote such as a vote of confidence or a vote on a major issue.


(3) In Nigeria it was not disputed that the Governor had express power to remove the Premier from office if he no longer commanded support.


(4) In Nigeria the Governor had express power to assess the situation "as it appeared to him".


(5) In Nigeria all Ministers, including the Premier, held office "during the Governor's pleasure"; although there was an important proviso to this.

All the above five points were peculiar to Nigeria, and not one of them applies to Sarawak. These distinguishing features force me in the present case to a conclusion converse to the Privy Council decision. It seems to me that by the provisions of the Sarawak Constitution, lack of confidence may be demonstrated only by a vote in Council Negri. Men who put their names to a "Top Secret" letter may well hesitate to vote publicly in support of their private views.

The third of the five points listed above obviously requires further consideration. Has the Governor in Sarawak power at all to dismiss the Chief Minister? In considering this question, we may start with s. 21 of the Interpretation Ordinance, the general effect of which is that where there is power to appoint (and it is not disputed that the Governor has power to appoint a Chief Minister) there is power to dismiss. However, where the appointment is "subject to the approval .... of some other person the power of dismissal shall only be exercisable.... subject to the approval....of such other person." If the appointment of a Chief Minister is subject to the approval of Council Negri, then by this s. 21 dismissal also would be subject to its approval. Further, in principle, Council Negri should manage its own affairs. A Governor is limited by article 6(3) of the Constitution to appointing as Chief Minister a member of Council Negri who in his judgment is likely to command its confidence (and approval) : thereafter it follows, by s. 21 of the Interpretation Ordinance, that only when Council Negri has shown lack of confidence (and lack of approval), can the Governor's power to dismiss, if it exists, be exercised.

Of course, if the Sarawak Constitution lays down that a Chief Minister may not be dismissed at all, then the defendants have no case and the Interpretation Ordinance cannot apply. The Sarawak Constitution does in fact direct in article 7(3) that all Ministers other than the Chief Minister hold office at the Governor's pleasure. According to Mr. Le Quesne this means that Ministers other than the Chief Minister may be dismissed "at the Governor's pleasure", whereas the Chief Minister may only be dismissed for cause. If the cause for dismissal is limited to the case of an adverse vote, then this interpretation does not help defendants. In my view, however, the suggested interpretation is altogether false. Article 7(3) clearly means that the Governor may dismiss Ministers but may not dismiss the Chief Minister in any circumstances.

A lot has been said about the duty and powers and discretion of the Governor. His paramount duty is to "act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the Council". (Article 10(1). There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council. Those occasions are in the performance of the following functions -


(a) the appointment of a Chief Minister;


(b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2) ).

As regards (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office. As regards (b), this probably has in mind a situation of splinter parties, as has been the case in France, when a general election could not be expected to show an overall majority for any one party. In Sarawak, it seems to me that 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.

To revert to the comparison of the Constitutions of Sarawak and of Nigeria, these Constitutions are so different that a contrast in powers must be intended: in Sarawak the Chief Minister's dismissal is quite simply beyond the powers of the Governor.

If the Constitution, however, should be construed as giving to the Governor a power to dismiss, that power can only be exercised - and I think that this was conceded by Mr. Le Quesne - when both


(a) the Chief Minister has lost the confidence of the House, and


(b) the Chief Minister has refused to resign and failed to advise a dissolution.

I have already dealt with (a) ; as regards (b), I do not think that the Chief Minister of Sarawak was ever given a reasonable opportunity to tender his resignation or to request a dissolution. He was never even shown the letter on which the dismissal was based until Court proceedings started, although it is true that at the moment of dismissal a list of signatories was sent to him with the letter from the Governor dated 17 June that list and that letter were typed on the same date as the publication in the Gazette of the dismissal of the plaintiff, who was given no time at all to consider the weight or effect of the move against him. Plaintiff did not refuse to resign: he merely expressed doubts whether in fact he had ceased to command a majority and requested "that the matter be put to the constitutional test".

A word may be said on what is the position if a Chief Minister has in fact ceased to command the confidence of a majority, and yet refuses to resign. In this situation at least, Mr. Le Quesne claims that the Governor must have a right of dismissal; otherwise the Constitution would be unworkable. Mr. Le Quesne's argument in effect is: if there is a gap, it must be filled: if there is no express power to enforce the resignation of a Chief Minister, that power must by implication lie with the Governor. I do not agree that stopgaps can be, as it were, improvised. In article 1 of the Constitution, a gap would appear to exist whenever the necessary address to remove the Governor is made to the Yang di-Pertuan Agong, and the latter'y refuses to dismiss him. Just 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. R is, however, reasonable that in certain situations the Courts could expound the Constitution by declaratory judgments. Articles or clauses to cover all situations need not be set out in a Constitution because the residue of discretionary power is left in the Courts. Extraordinary situations do not often arise, and need not be met or considered until they do. Dicey has a whole chapter on "The Sanction by which the Conventions of the Constitution are enforced". (Chapter XV: The law of the Constitution: AV Dicey (10th Edn.) pp 444 to 457.)


....the nation expects that a Minister who cannot retain the confidence of the House of Commons, shall give up his place, and no Premier even dreams of disappointing these expectations." (at p. 444)


But the sanction which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are expressed, is the fact that the breach of principles and of these conventions will almost immediately bring the offender into conflict with the Courts and the law of the land." (at p. 445)


. .. the one essential principle of the constitution is obedience by all persons to the deliberately expressed will of the House of Commons in the first instance, and ultimately to the will of the nation as expressed through Parliament." (at p. 456)


Of course, therefore, a Minister or a Ministry must resign if the House passes a vote of want of confidence."


(at p. 457)

Dicey is speaking of the British Constitution, but the same principles apply mutatis mutandis to the Constitution of Sarawak. The constitutional way out both for a British Prime Minister and for a Sarawak Chief Minister is not by dismissal but by resignation. We need not speculate on what would happen if occasion arose for a resignation, and a Chief Minister refused to resign. 'In the instant case, the Chief Minister has not refused to resign, and there is no power to dismiss him. He has already indicated through his Counsel that he was prepared to consider a dissolution and presently an election. That political solution may well be the only way to avoid a multiplicity of legal complications. Possibly all parties, and the people of this nation, in whom sovereignty is supposed to lie, will wish the same solution.


In some political situations a judicial duty to rule upon the legal merits of the case may have to be accepted as an inescapable obligation .... In an atmosphere highly charged with political tension the task of the Judges may be acutely embarrassing, especially if they are called upon to decide between two claimants to legitimate political power, of whom one commands the effective means of imposing his will and the other is able to marshal equally or more persuasive legal arguments."


("The New Commonwealth and its Constitutions":


SA de Smith, p. 87)

Embarrassing as it may be, my task is simply to interpret the written word of the Constitution. On such interpretation the case presented in the statement of claim is unchallengeable. There will be judgment for the plaintiff as prayed.

Judgment for the plaintiff.

If it is to be, it is up to me!

Today I want to be different. Instead of writing heavy stuff I just want to digest a few things that I think would give some inspiration to myself and perhaps others too.

The 10 simple words "if it is to be, it is up to me", I picked somewhere in a certain magazine give a profound impression. Philosopher Ralph Waldo Emerson who once said "When you make a decision, the universe conspires to make it happen."

On this beautiful Chinese New Year day, while I want to relax because most shops are closed, I just want to ponder upon those 10 words.

To all of you who pass by this blog I like to wish you great days ahead. It is you who make things happen and if it is to be it is up to you.

Malaysia, after 50 years of its formation, is really in need of refurbishment.

May God bless everyone.

Happy and prosperous Chinese New Year of the Golden Ox

To all our Chinese relatives, friends, neighbours and all Chinese in Malaysia: I like to take this opportunity to to wish you all a very happy Chinese New Year of the Golden Ox.

May you all celebrate the new year in atmosphere of peace and harmony. Insofar as diversity of cultures and beliefs are concerned, Malaysia is a place like no other. The blend of ethnic felicity is our pride. Unfortunately many a time it has been threatened by deliberate extremism by desperate politicians. But the saddest part is that, those destructive hands belonged to those on the corridor of power, who also preach moderation at other times.

With the coming of this CNY it is our fervent hope that this brand of politicians shall come to their senses and cease doing anything adverse to the interest of the country and people.

Qong Xi Fa Cai.