COMPARITIVE CONSTITUTION

Case Analysis

Submitted by

Dilraj Singh Division- B PRN No-18010224071 BBA-LLB

Batch-2018-23

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune.

In

March, 2022

Under the guidance of

Mr. Ahmed Ali

 Stephen Kalong Ningkan v. Government

FACTS :-

The petitioner served as the majority party's leader in the Council Negri after being chosen as
Sarawak's Chief Minister. Three years later, on the basis of representation, the Governor
asked the petitioner to step down since the majority of the Council no longer trusted him to
serve as Chief Minister, Because the petitioner refused to comply with this demand, the
governor "dismissed" him and replaced him as chief minister with Penghulu Tawi Sli. The
petitioner then filed a lawsuit in the Kuching High Court, where the judge ruled that the
dismissal of the petitioner was invalid. Among other reasons, the court found that the private
representation made to the Governor by Council members did not demonstrate a lack of
confidence in the petitioner, which could only be determined by a formal vote in the
legislative. Penghulu Tawi Sli then asked the Speaker to call the Council together so that the
petitioner may face a legitimate vote of no confidence.

The situation in Sarawak got more heated and severe when this request was turned down. His
Majesty the Yang di-Pertuan Agong declared a state of emergency in Sarawa a week after
making this choice. The Emergency (Federal Constitution and Constitution of Sarawak) Act,
1966 was subsequently passed by the Federal Parliament, amending clauses (5) and (6) of
Article 150 by adding the words "or in the Constitution of the State of Sarawak" after "this
Constitution" and further stipulating that, despite any provisions of the State Constitution, the
Governor may call a meeting of the Council Negri, suspend standing rules, and issue
directives that are binding on the Speaker. In response, the Governor called a meeting of the
Council Negri, which fired the petitioner after it voted a vote of no confidence in him.
ISSUE :-

(1) Was the Yang di-Pertuang Agong's declaration of a state of emergency invalid?

(2) Was the State of Emergency (Federal Constitution and Constitution of Sarawak) Act,
1966, also invalid?

ANALYSIS AND CONCLUSION:-

The applicant's attorney, Sir Dingle Foot, claimed on the first point that the court had the
authority to enquire into the Yang di-Pertuan Agong's use of the statutory right to declare a
state of emergency, which was granted by a specific Constitutional Article. Azmi C.J. and
Barakbah L.P. of the Federal Court, In addition, Ong Hock Thye F.J. unanimously decided to
reject the appeal On the first point, the majority decided (Ong F.J. dissented) that the court
could not ask if the Agong was convinced that a state of emergency existed. Ong F.J.
nonetheless, believed that this matter might be resolved through the courts.

When one considers the arguments put up by each of the Lordships to justify their choice, the
case takes on a fascinating quality. The court's ruling was initially read by the Lord President,
who made note that , According to him, the court must presume that the government is
working in the best interests of the state when issuing a proclamation of emergency in
accordance with the Constitution and must not allow any evidence to be shown to the
contrary.

His Lordship first rejected the argument made by the applicant's attorney that when discretion
was granted to anyone, the court had some oversight to ensure that the authority was used
appropriately. He then cited two Indian decisions 1 and held that in his opinion the Yang di-
Pertuan Agong is the only judge, and that the court should not question Yang di-Pertuan
Agong's decision to declare a State of Emergency once His Majesty has reached that
conclusion.

1
Bhagat Singh v. The King-Emperor L.R. 68 I.A. 169; King-Emperor v. Benoari Lai Sarma & Ore. [1945] A.C.
Tan Sri Azmi, the Chief Justice of Malaya, based his judgement exclusively on two Indian
Privy Council judgments2, in which it was decided that the Governor-General of India was
the only person qualified to determine whether a state of emergency existed. The Yang di-
Pertuan Agong must be recognised as the only judge in determining whether a state of
emergency exists. Additionally, the Yang di-Pertuan Agong follows the cabinet's
recommendations, which are obligatory on him. Therefore, the decision that is being
contested is that of the Federal government, not the Yang di-Pertuan Agong. Therefore, it is
up to the courts to ensure that the government, like everyone else, abides by the law. This is
in contrast to the role of the Governor-General of India, who has prerogative powers and
whose decisions are not subject to legal review.

The Federal Court's second task was to determine whether the Federal Parliament has the
authority to change the Sarawak State Constitution. Sir Dingle Foot contended, for alia, that
under article 159 Parliament might modify the Federal Constitution but there was no
provision whatsoever in the Malaysian Constitution This empowered the Federal Parliament
to change the Sarawak Constitution. According to the court, article 150(5) of the Constitution
grants the Federal Parliament the authority to enact legislation regarding any subject, with the
exception of those covered by clause (6A) of article 150. As a result, it was determined that
the Emergency (Federal Constitution and Constitution of Sarawak) Act of 1966 was valid.