DISMISSAL OF CHIEF MINISTER

Stephen Kalong Ningkan (No.1)

A Brief Analysis

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

Malaysia has a dubious distinction of having a disproportionately high number of chief

ministers of states being dismissed. In fact, the first such crisis in Sarawak was only the
second of its kind in the British Commonwealth.1 These dismissals have caused
constitutional crisis in the states and brought the Federal and respective State
Constitutions into sharp focus. In nearly all the cases, the courts have been asked to
interpret the constitutions by either implying certain powers into the written
constitutions or including constitutional conventions that either should exist for the
better governance of the State or are said to have been inherited from the British. The
predominant approach of the courts has been to interpret the letter of the written law
strictly and narrowly. It has also highlighted the role and constitutional powers of the
heads of states and the power of the Federation to intervene in the states using its
various federal powers. The current constitutional crisis in Perak has also drawn
attention to earlier decisions related to the dismissal of chief ministers of states. The
starting point is of course the case of Stephen Kalong Ningkan v Tun Abang Haji Openg
and Tawi Sli.2

The summarised facts of Stephen Kalong Ningkan (No.1) were that on 16 June 1966,
the Governor of Sarawak received a letter signed by twenty-one members of the State
Assembly, the Council Negri, (including one ‘signature’ that was a mere rubber stamp)
stating that the signatories no longer had any confidence in their Chief Minister. The
Governor thereupon wrote and informed the Chief Minister, Stephen Kalong Ningkan,
on the same day that from representations he had received he was satisfied that the
Chief Minister had ceased to command the confidence of the Council Negri and invited
him to resign. The next day, 17 June, the Chief Minister informed the Governor that his
view as to the loss of confidence of the members of the Council Negri in the Chief
Minister was not supported by the meeting of the Council Negri held on 14 June.
Nevertheless, the Governor on the same day, 17 June, informed the Chief Minister that,
as he had ceased to have the confidence of a majority of the members of the Council
Negri and had refused to tender his resignation and the resignation of the members of
the Supreme Council in accordance with Article 7(1) of the Sarawak State Constitution,
he declared that the Chief Minister and the other members of the Supreme Council had
ceased to hold office. The Governor also appointed the second defendant, Penghulu
Tawi Sli, as the new Chief Minister forthwith. Stephen Kalong Ningkan, as the
plaintiff, basically claimed a declaration that the Governor had acted ultra vires the
Sarawak State Constitution by relying on the letter by members of the Council Negri to
determine loss of confidence in the Chief Minister and dismissing him. The proper way

1 Thio, S.M., Dismissal of Chief Ministers, (1968) Vol. 8 No. 2 Malaya Law Review 283 at p. 283
2 [1966] 2 MLJ 187
to assess any loss of confidence should have been by a vote in the Council Negri. It
was also argued by the plaintiff that even if the twenty-one signatures (including one
that was a mere rubber stamp) were to be accepted, it could not amount to a majority in
the State Assembly which had forty-two members. The Governor could not therefore
have concluded that there was ‘loss of confidence’ against the Chief Minister.

The main arguments advanced by Stephen Kalong Ningkan were that: firstly, the
Governor had no power of dismissal, and, secondly, even if he had the power or
discretion it could not be exercised arbitrarily or capriciously. The arguments in
support centred on the interpretation of some the articles of the Sarawak State
Constitution.

a) Loss of Confidence

(i) ‘Loss of Support’ versus ‘Loss of Confidence’

The first issue that Harley Ag. CJ had to deal with was: what, then, was the
meaning of the words in Article 7(1) that ‘the Premier no longer commands
the support of a majority of the members’? Harley Ag. CJ referred extensively
to the decision of the Nigerian case of Adegbenro v Akintola3 where the courts
had to consider if the Premier of Western Nigeria no longer enjoyed the
support of a majority of the members. Harley Ag. CJ decided that the
Nigerian case needed to be distinguished because it used the word ‘support’
whereas the Sarawak State Constitution required ‘loss of confidence’ and
therefore ‘confidence’ of a majority of members implied reference to a vote
such as a vote of confidence or a vote on a major issue.’4

(ii) Assessment of ‘Loss of Confidence’

The next issue that Harley Ag. CJ had to consider was: whether the only method
to assess the loss of confidence in the Chief Minister was by a vote on the floor
of the House? The Federal Supreme Court of Nigeria in Adegbenro was of the
opinion that constitutionally, in Western Nigeria, the lack of support could only
be determined by a decision or resolution on the floor of the House. On appeal
the Privy Council in that case however took the opposite view and held that it
was not the only method and ‘lack of confidence’ could be assessed, without
limitation, based on other material as well. Harley Ag. CJ, having distinguished
Adegbenro on the ground that was a difference between ‘loss of support’ and
‘loss of confidence’ then went on to rule that by the provisions of the Sarawak
State Constitution, lack of confidence could only be demonstrated by a vote in
the Council Negri as ‘(m)en who put their names to a “Top Secret” letter may
well hesitate to vote publicly in support of their private views.’5

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

4 Ibid, at p. 193
5 Ibid.
b) Limits on the Governor’s Powers

Harley Ag. CJ accepted that under Article 7(3) of the Sarawak Constitution all
Ministers other than the Chief Minister hold office at the Governor’s pleasure.’6 This
meant that while the Governor could dismiss Ministers he could not dismiss the Chief
Minister in any circumstances. Harley Ag. CJ also said that even if the Constitution
were to be construed as giving to the Governor a power to dismiss, that power could
only be exercised when the Chief Minister had lost the confidence of the House, and, he
had refused to resign or failed to advise the Governor on a dissolution. It was argued by
the defendants that in this situation at least, the Governor should have a right of
dismissal as otherwise the Constitution would become simply unworkable. It was
further argued, that if there was a lacuna in the Constitution it should be filled by the
courts. Therefore, even if there was no express power to enforce the resignation of a
Chief Minister, that power lay by implication with the Governor. Harley Ag. CJ did not
agree that such ‘stop-gaps’ could be improvised. He felt that ‘(j)ust because a Chief
Minister or a Governor does not go when he ought to go is not sufficient reason for
implying in the Constitution an enforcing power vested in some individual.’7 Harley
Ag. CJ decided that there was no need to speculate on what would happen if an
occasion arose for a resignation and the Chief Minister refused to resign since in the
instant case the Chief Minister had not refused to resign and there was no power to
dismiss him.

Consistent with the case of Adegbenro, Harley Ag. CJ also did not resort to
constitutional conventions to resolve the issues before him. The Privy Council in
Adegbenro adhered throughout to the literal meaning of the words used by the
constitution-makers and did not go outside the Western Nigerian Constitution to
determine the issue. Harley Ag. CJ finally also concluded that in Sarawak ‘a Chief
Minister may advise a dissolution, even though he has not as yet lost the confidence of
Council Negri. In such circumstances, the Governor's refusal to dissolve might be
conventionally unconstitutional, although not illegal.’8

It is important to note that in the end, the decision of the Privy Council in Adegbenro
was by-passed by the Western Nigeria Legislature. Ogwurike9 writing on a comparison
of the decisions of the Privy Council and the Nigerian Supreme Court has contended
that the framers of the Western Nigerian Constitution wanted the Parliament to be
responsible at every level for the ultimate fate of Government and Premiers as it was the
surest safeguard for the integrity and improvement of democratic institutions and its
attendant principles and doctrines.

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