Stephen Kalong Case Review

STEPHEN KALONG NINGKAN V. TUN ABANG HAJI OPENG AND TAWI SLI FEDERAL tourist court KUCHING OCJ HARLEY A-G (BORNEO), CJ KUCHING CIVIL SUIT NO. K 45 OF 1966 7 family 1966 JUDGMENT Harley A-G (Borneo) CJ The complainant was ap maneuvered ca perpetrate att cobblers last of Sarawak on 22 July 1963. On 14 June 1966 in that respect was a meeting of Council Negri at which, asunder from the verbaliser, plaintiff and twenty different(a)wise elements were present. Five members of the Sarawak United Peoples Party and matchless(prenominal)(a) Machinda member, who norm ally be put up as an opposition, were present among the total of 21 members.Of the 21 members, three were ex officio. Bills were. passed with give away opposition on that day. One of the members present, Abang Haji Abdulrahim lay in Abang Haji Moasili, who gave assure in this reason, was a averer of the plaintiff on 14 June and indeed up to 16 June. He says that as from the lawsuitide of 16 June he would non keep up keep uped the plaintiff. The detail ashes that on that point has never been a motion of no assumption arrange in Council Negri, nor has there been whatever defeat of a establishment bill.On 14 June a earn was name and addressed from Kuala Lumpur to the governor. It is legitimate that this earn was signed by 21 individuals who argon members of Council Negri. (There argon 42 members in all of Council Negri accession the Speaker. ) The author of the letter was Tan Sri Temenggong Jugah, Federal rector for Sarawak Affairs ( non a member of Council Negri). The letter reads as follows garner no. 1 cabbage SECRET c/o YB Enche Thomas Kana, Dewan Raayat. Kuala Lumpur. 14hb June 1966. His excellence, The governor of Sarawak, The capital of Kazakhstan, KUCHING.Your excellency. We, the undersigned members of Council Negri Sarawak, romance to inform your Excellency that we no hourlong bemuse several(prenominal)what(prenominal) assurance in the Hon Dato Stephen Kalong Ningkan to be our leader in the Council Negri and to continue as party boss subgenus Pastor. 2. Since the Hon. Dato Ningkan has mill to command the presumption of the absolute legal age of the members of the Council Negri, he is bound by obligate 7(1) of the genius of the terra firma of Sarawak to peckish the disow soil of the members of unequivocal Council. 3.We respectfully prayer your Excellency to beget appropriate legal action under that bind and to appoint a new head word take care pursuant to obligate 6(3) of the governance. Yours faithfully, (Signed) T JUGAH. (A total of names was attached. ) In the inclining attached to this letter, 25 names ar set out. Against 21 of these names are signatures (in whiz case the signature is a chop). This letter was never shown to the plaintiff until later on accost transactions kick the bucketed. it was dealed to the governor (def windupant 1) in Kuching on 16 June.The next letter from the Governors privat e secretary to the plaintiff reads as follows earn No. 2 ASTANA, KUCHING, SARAWAK. Ref GOV/SEC/144 16 June 1966. To The reputable Dato Stephen Kalong Ningkan, PNBS PDK fountainhead 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 legal age of the council, informing his Excellency, and his Excellency is satisfies, that you restrain ceased to command their trustfulness. 2.In order that the provisions under words 7(1) and 6(3) of the ecesis of the accede of Sarawak be complied with, his Excellency requires your presence forthwith at the Istana upon receipt of this letter to mould your resignation. I harbor the honour to be, Sir, Your amenable servant, (Signed) ABDUL KARIM BIN ABOL, Ag head-to-head Secretary to HE the Governor. In arrange to the above the plaintiff replied Letter No. 3 primary(prenominal) 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 go out 16 June 1966 I yield the honour to refer to your above letter received by me late last razeing 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 non appear to be study his Excellencys aspect that I commence lost the assertion of the absolute majority of its members. In these circumstances, I shall be grateful if I whitethorn be supplied with the names of those council members who support the representations referred to in your letter.I shall be grateful if you go away convey to his Excellency that, in my view, the proper course to resolve both doubts regarding my ability to command the sanction of the majority of Council Negri members is to arrange for the council to be convened in order that the matter atomic numb er 50 be put to the implicit in(p) test. In addition to believing that this represents both the republican course and the best champion for Sarawak and Malaysia, it is iodin which I believe would receive the support of the majority of the pot of this suppose and mavin 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 Letter No. 4 ASTANA, KUCHING, SARAWAK. GOV/SEC/144 17 June 1966. To The Honble Dato Stephen Kalong Ningkan, PNBS, PDK Kuching, Sarawak. Dear Dato, I have received your letter, Ref CM 1/66 go out 17 June 1966 in reply to my private secretarys letter sent to your yesterday. It is clear from the restrain of your letter that you have disavowd to tender the resignation of the members of the compulsive Council in concurrence with art. (1) of the institution of the State of Sarawak, although you have ceased to have the reliance of a majority of the members of the Council Negri. I, therefore, declare that you and other members of the ultimate Council have ceased to clench the daub with import forthwith. 2. I am now appointing the Honble Penghulu Tawi Sli. ABS Chief Minister of Sarawak with effect for with. 3. As pass alonged, I forward herewith a distinguish of the name of members of the Council Negri who have do representations to me in person that they have ceased to have presumption in you. Yours sincerely. Enc (Signed) TUN ABANG HAJI OPENG Governor. The Governor is the startle defendant in the present instance and the Honourable Penghulu Tawi Sli is the siemens defendant. Mr. Kellock has made the point that it was just in this letter and after the firing 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 Letter No. 5 Pangau Libau Kuching. 17 June 1966. His Ex cellency 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 directlys date.It is non true that I have refused to tender my resignation the psyche 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 Honble Pengulu Tawi Sli as Chief Minister you would be performing unlawfully and I ordain have no option exactly to question my remotion in the woo.I am, Sir, Your obedient servant, (Signed) SK NINGKAN. (Dato Stephen Ralong Ningkan). On 17 June the Sarawak Government print Extraordinary announced Document No. 6 No 117 THE war paint OF THE STATE OF SARAWAK It is hereby published for customary cultivation 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 followers have ceased to be members of the unequivocal CouncilThe 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 popular education that the Governor has, in exercise of the forcefulnesss conferred upon him by hold 6(8) of the administration 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 un primitively 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 fusee of representations made to him on 16 June 1966, by members of the Council Negri who preferred to boycott the academic term of the Council Negri on 14 June 1966, on the ground of alleged issue of confidence in the Chief Minister. 3. A declaration that his purported crowd outal by the first defendant was ultra vires, null and void. 4. A declaration that the plaintiff is and has been at all literal times Chief Minister of the State of Sarawak. . An injunction restraining the second defendant from performing as the Chief Minister of the State of Sarawak. Respecting this claim, the side by side(p) 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 neediness not set out all these articles, exactly 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 perceptiveness but after consultation with the Chief Minister. (2) The Governor shall be appointed for & term of four years but whitethorn at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong, and may be eradicated from office by the Yang di-Pertuan Agong in pursuance of an address by the Council Negri back up by the chooses of not less than two-thirds of the total number of the members Executive potential 5.The executive authority of the State shall be vested in the Governor but executive functions may by law be conferred on other p ersons. The Supreme Council 6. (1) There shall be a Supreme Council to terminate the Governor in the exercise of his functions. (2) The Supreme Council shall consist of a Chief Minister and not more than eighter from Decatur 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 similarly 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, and then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the S upreme Council. (2) A member of the Supreme Council may at any time resign his office by writing under his hand addressed to theGovernor, and a member of the Supreme Council other than the Chief Minister shall to a fault cede his office if his participation 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 Governors cheer. Governor to act on fire 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 other 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 Suprem e 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 forfend an equality of votes but shall not vote in any other case. rendering 44. (1) .. (2) .. (3) .. (4) .. (5) The recitation jurisprudence, as in force at the send-off of this Constitution, shall admit 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 create verbally law indoors the take to being of that Ordinance. dent 21 of the Interpretation Ordinance (Cap. ) reads as followsPower to appoint includes business office to send word 21. Whenever any written law confers upon any person or authority a actor to make appointments to any office or place, the top executive 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 toter of much(prenominal) office or placeProvided that, where the power of much(prenominal) person or authority to make such appointment is only exercisable upon the good word 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 readsApplication 2. 1) Save where the contrary intention appears the provisions of this Ordinance shall apply to this Ordinance and to any w ritten law now or futurity in force made by competent authority in Sarawak and to any instrument made or final resultd thereunder. The following definition from the Interpretation Ordinance was not cited by Counsel on either typeface Governor in his discretion and Governor acting in his discretion mean that, in respect of the power pertain, the Governor shall not be stimulate to consult with the Supreme Council in the exercise thereof. The briny 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 mustiness not be exercised arbitrarily or capriciously. The defending team contends that there Is no question of the Governors power being precisely 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 art to act. The defence further contends that want 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 Governors personal assessment. Moreover, the rules for the construction of statutes are like those which apply to the construction of other chronicles, specially as regards one decisive 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. 17). 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 leave out of confidence is to be runed can such need of confidence be assessed only by a vote on the offend of the nursing home (if I may use this word in its general application) ?The Federal Supreme Court of Nigeria was of sight that the thoroughgoing method (in Nigeria) of touchstone lack of confidence required a decision or liquidation on the pull down of the family unit. (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 pass on 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 reject a Governor from utilization his power of removal except upon certain(p) 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 cover 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 Governors pleasure Provided that (a) the Governor shall not direct the postmortem from office unless it appears to him that the postmortem examination no longer commands the support of a majority of the members of the House of concourse . 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 responder, removed(p) him from office and appointed the appellant in his place.There had been no vote unbecoming to the respondent in the House anterior to his removal. Thereafter, in proceedings instituted by the respondent challenging the Governors right to remove him. the following issues were referred by the soaring Court of the Western Region to the Federal Supreme Court of Nigeria consistent 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.On solicitation by the appellant . Held (1). (2) There was zilch either the intent or provision of the Constitution of We stern Nigeria which legally precluded the Governor from forming his opinion on the basis of anything but votes formally given on the entrance 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 over(p)(a) to the Governors own assessment and there was no limitation as to the material on which he cogency 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 entitleships 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 really small compass. Its decision turns upon the meaning to be attached to the verbalism 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 ma y 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 Governors pleasure, for, subject to the saving conditions of supplys (a) and (b) that follow, the Governor has only to withdraw his pleasure for a Ministers tenure of office to be brought to an end. Where the Premiers office in concerned it in so (a) that limits the Governors power to withdraw his pleasure underlyingly, 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 recognize 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 the ir 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 verbalize, and tell truly, that the phrase is derived from the constitutional understandings that support the unwritten, or kind of partly unwritten, Constitution of the United Kingdom.It recognises the basal 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 tenet 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 autochthonic 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 conventions to a given point if it arose in the United Kingdom, would depend less upon any simple line of principle than upon the actual concomitants of that situation and the good sense and semi semipolitical 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 curbment. 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 assembly 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 within the House short of actual voting are all suitable of contributing eviden ce to indicate what action this or that member has distinct to take when and if he is called upon to vote in the House, and it appears to their Lordships somewhat unreal to audition 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.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 constricti ng 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. 1 (4), proviso (b) ) to delimit the Governors power of dissolving the House even without the Premiers advice. According to any ordinary rule of construction can t must be given to the fact that the Governors 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 jeopardys of a Governor arriving at any conclusion to his Premiers support in the House except upon the incontrovertible evidence of votes enter 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 take on himself to have interpreted a critical step in a direction which is proved to be contrary to the desirees 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 voice he in, in conflict with the will of the elected House of Representatives whose majority is for the time being pull uped 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 main(a)s position, if he was invited to advise a Governor as to the circumstances and liaison 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 rightfulness 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 individually 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 timber for, even without the test imony 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 strand 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 fearfulness 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 dependent 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 Ministers loss of support in the House of Commons concentrates therefore upon a Prime Ministers duty to ask for liberty to resign or for a dissolution, rather than upon the Sovereigns 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 evidentiary material upon which a Prime Minister can be dismissed, where dismissal is an actual possibility and the right or removal which is explicitly reco gnised 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. . t 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 Councils judgment relating to the Constitution of Nigeria does not apply to the Constitution of Sarawak be give birth 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 confidenc e of a majority of members, being a term of art, may imply credit entry to a vote such as a vote of confidence or a vote on a major issue. (3) In Nigeria it was not contest 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 Governors pleasure although there was an important proviso to this. All the above five-spot 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 crystalize Secret letter may well hesitate to vote publically in support of their private views. T he third of the five points listed above patently 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 appr oval) 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 Governors 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 Governors pleasure. According to Mr. Le Quesne this mode that Ministers other than the Chief Minister may be dismissed at the Governors 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 ma y 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 option 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 merely lost the confidence of Council Negri. In such circumstances, the Governors 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 Ministers 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 credible oppo rtunity 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 print 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 infract, 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 lattery refuses to dismiss him. Just because a Chief Minister or a Governor does not go when he ought to go is not ample 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. dodgy has a whole chapter on The guarantee 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 disappoint 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 at once 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, therefor e, 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. mayhap 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 mobilize equally or more persuasive legal arguments. (The New race 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.