Wednesday, April 29, 2009

The Use of Emergency Powers to Dismiss a Chief Minister

Stephen Kalong Ningkan No.2

On 14 September 1966, just a week after the judgment of Harley Ag. CJ in Stephen Kalong Ningkan No.1, a state of emergency was proclaimed throughout the State of Sarawak by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution although the Emergency of 1964 had yet to be lifted and was still in force throughout the country. Consequent to the Proclamation, the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was passed by the Federal Parliament in a special session on 19 September 1966. It amended clauses (5) and (6) of Article 150 of the Federal Constitution by inserting after ‘this Constitution’ the words ‘or in the Constitution of the State of Sarawak’ and providing further that, notwithstanding anything in the State Constitution, the Governor may summon the Council Negri, suspend standing orders and issue directions binding on the Speaker. The main aim of these provisions was obviously to compensate for the lack of power on the part of the Governor of Sarawak to dismiss the Chief Minister although it was stated that there was also a communist threat in Sarawak. The communist threat (if any) could have been easily dealt with by the existing Emergency of 1964. The amendments to Article 150 were meant to be temporary as they were to cease to have effect six months after the termination of the Emergency. On 20 September 1966 the Governor of Sarawak acting under the said new Act and not on the advice of the Chief Minister of Sarawak (as normally required by the Constitution of Sarawak) called a meeting of the Council Negri of Sarawak for 23 September 1966. After a vote of no confidence against him in the Council Negri on that day, Stephen Kalong Ningkan was, on 24 Deptember 1966, again dismissed as the Chief Minister by the Governor of the State. Stephen Kalong Ningkan, for a second time, brought actions in the High Court of Borneo and the Federal Court to challenge his second dismissal.

The summary of the judgments of the High Court of Borneo, Federal Court and the Privy Council is set out at:

What is obvious from the study of these cases is that the Federal Government has not rolled its final dice in the current Perak Constitutional Crisis as these cases have given the Federal Government carte blanche emergency powers. The Privy Council categorically stated that the collapse of civil government was within the meaning of an 'emergency'.

The vast majority of Malaysians were silent when these excessive powers were being granted to the Federal Government. It is only now that there seems to be a greater political awareness and concern of those powers. The voices that now criticize every contemporary judgment may well like to look at where the initial foundations were laid. The judiciary has for very long acquiesced to the Federal Executive arming itself with more powers. It has reduced the concepts of the separation of powers and federation to being merely academic with less and less relationship to reality.

Friday, April 24, 2009


Stephen Kalong Ningkan (No.1)

A Brief Analysis

Malaysia has a dubious distinction of having a disproportionately high number of chief ministers of states being dismissed. In fact, the first such crisis in Sarawak was only the second of its kind in the British Commonwealth. These dismissals have caused constitutional crisis in the states and brought the Federal and respective State Constitutions into sharp focus. In nearly all the cases, the courts have been asked to interpret the constitutions by either implying certain powers into the written constitutions or including constitutional conventions that either should exist for the better governance of the state or are said to have been inherited from the British. The predominant approach of the courts has been to interpret the letter of the written law strictly and narrowly. It has also brought into focus the role and constitutional powers of the heads of states and the power of the Federation to intervene in the states using its various federal powers. The current constitutional crisis in Perak has also drawn attention to earlier decisions related to the dismissal of chief ministers of states. It is going to be necessary for the courts to resolve the constitutional issues by considering the previously decided cases. The starting point is of course the case of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli. [1966] 2 MLJ 187. Much has already been written recently about this case by academics and constitutional lawyers. The Privy Council decision in Adegbenro v Akintola [1963] 3 WLR 63; (1963) 7 JAL 99 was extensively referred to in Stephen Kalong Ningkan (No.1) and has been repeatedly reported by some writers. It is important to remember that the Privy Council decision was distinguished and not followed in Stephen Kalong Ningkan (No.1) and even in Nigeria it was by-passed by the Western Nigeria Legislature.

Please see the brief analysis of the case of Stephen Kalong Ningkan (No.1) at