Stephen kalong case review

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.

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: Letter No. 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 deepestrespect, 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.

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. he 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. . 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.

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) …. he 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. 3, 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.

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 pregnantobservation.

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 oncerned. 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.

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 manyfoodarguments 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.

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 hen 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.

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 evendreamsof disappointing these expectations. ” (at p. 44) 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 theBritish 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 ….