Sarawak constitutional crisis
In 1966 Sarawak's first Chief Minister was removed by the state Governor, put back by a court, and then removed again after the federal government declared an emergency and used it to change the state constitution. Andrew Harding describes the episode as a precedent for later federal interference in Sabah and Sarawak.
What happened
Stephen Kalong Ningkan became Sarawak's first Chief Minister on 22 July 1963, leading the majority party in the state legislature, the Council Negri. In June 1966 the Governor, Tun Abang Haji Openg, received representations that a majority of Council Negri members no longer had confidence in him. Those representations took the form of a signed letter rather than a vote in the chamber. The Governor asked Ningkan to resign; when he refused, the Governor declared him dismissed and appointed Penghulu Tawi Sli in his place.
Ningkan went to court. In Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli, the High Court at Kuching, sitting under Harley Ag CJ (Borneo), declared the dismissal void: under the Sarawak Constitution, loss of confidence could be shown only by a formal vote in the Council Negri, and a private letter to the Governor was not that. Ningkan was back in office. Tawi Sli asked the Speaker to convene the Council Negri so a proper vote could be taken, and the Speaker refused.
A week after that judgment, on 14 September 1966, the Yang di-Pertuan Agong proclaimed a state of emergency throughout Sarawak under Article 150 of the Federal Constitution, which as it then stood permitted a proclamation where he was satisfied that a grave emergency threatened the security or economic life of the Federation or any part of it.
That wording has since changed: Parliament replaced Article 150(1) in 1981, and the clause in force today also covers a threat to public order and requires the proclamation to declare the ground. When reading the 1966 judgments, read them against the older text.
Parliament then passed the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966. It extended Article 150(5) and (6) to cover the Constitution of the State of Sarawak, and gave the Governor power — notwithstanding anything in the state constitution — to summon the Council Negri, suspend its standing orders, and issue directions binding on the Speaker. The Governor used that power, the Council Negri met in late September, a no-confidence vote passed, and Ningkan left office.
Ningkan challenged the emergency itself.
- High Court
- Pike CJ (Borneo) rejected the argument that the Agong's acts under Article 150 could not be questioned in any court, and said the Agong is required to act on Cabinet advice when making such a proclamation.
- Federal Court
- dismissed the appeal: the majority, Barakbah LP and Azmi CJ Malaya, held the Agong is the sole judge of whether a grave emergency exists and that the court should assume the Government acts in the best interest of the State. Ong Hock Thye FJ dissented, saying the question was justiciable and that executive acts injuring rights should be reviewable. The court was unanimous that Parliament had power under Article 150(5) to alter the state constitution, so the 1966 Act was valid.
- Privy Council
- dismissed the further appeal on the narrow ground that fraud on the law had not been shown, leaving the larger question of justiciability undecided, while reading "emergency" broadly enough to include a collapse of civil government.
What the episode means is disputed, and the disagreement runs along more than one line.
- Andrew Harding
- describes it as the federal government manipulating the state assembly and then proclaiming an emergency in order to amend the state constitution, and as a precedent for later interference in Sabah and Sarawak.
- The Federal Court majority
- reasoning points the other way: that the emergency power is committed to the Yang di-Pertuan Agong on the Government's advice, and that Parliament's emergency law-making reaches the state constitution.
- Visu Sinnadurai, writing in 1968, and Ong Hock Thye FJ in dissent
- argued the courts should have tested whether the constitutional precondition actually existed.
- R. H. Hickling and S. Jayakumar
- disagreed later about whether the Agong holds any personal discretion under Article 150 at all.
- James Chin, on motive
- points to Ningkan's land legislation and his insistence on the Twenty Points as what turned both local rivals and Kuala Lumpur against him.
- Michael Leigh
- is reported as calling the Land Bill a red herring.
- Shukri Shahizam
- argues the majority's approach no longer reflects current Malaysian law.
What the sources say
The people and the offices
Stephen Kalong Ningkan was appointed the first Chief Minister of Sarawak on 22 July 1963, and led the majority party in the Council Negri (the state legislature).
Visu SinnaduraiRevisiting early Political History of Modern Sarawak through the making of Stephen Kalong Ningkan as Sarawak's first Chief Minister
The Governor of Sarawak at the time was Tun Abang Haji Openg; the man appointed in Ningkan's place was Penghulu Tawi Sli.
Sinnadurai (1968) 10 Mal. L.R. 130Revisiting the case of Stephen Kalong Ningkan vs Abang Openg and Tawi Sli
The first removal
In June 1966 the Governor, acting on representations that a majority of Council Negri members had withdrawn confidence in Ningkan, asked him to resign; Ningkan refused, and the Governor then declared him dismissed and appointed Tawi Sli as Chief Minister.
Sinnadurai (1968) 10 Mal. L.R. 130Kalong Ningkan — Unsung Political Warrior
The representations took the form of a letter signed by members of the Council Negri, not a vote taken in the chamber.
Sinnadurai (1968) 10 Mal. L.R. 130 (the private representation made to the Governor by members of the Council did not show a lack of confidence in the petitioner which could only be assessed by a formal vote in the legislature)Malaysiakini letters
The court reinstates him
In Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the High Court in Kuching (Harley Ag CJ, Borneo) declared the dismissal void, holding that under the Sarawak Constitution loss of confidence could be established only by a formal vote in the Council Negri, so the Governor's action was outside his powers.
Sinnadurai (1968) 10 Mal. L.R. 130When The Judiciary Blinked And Flinched
The judgment of Harley was delivered a week before the emergency proclamation of 14 September 1966, as recited by the Privy Council.
After the ruling, Tawi Sli requested the Speaker to convene the Council Negri so that a formal no-confidence vote could be taken against Ningkan; that request was refused.
The emergency and the constitutional amendment
As it stood in 1966, Article 150(1) of the Federal Constitution provided: "If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security or economic life of the Federation or of any part thereof is threatened, he may issue a Proclamation of Emergency." That is the wording the 1966 proclamation and the litigation about it turned on
That clause has since been amended and is no longer the text in force. The words "whether by war or external aggression or internal disturbance," which had followed "is threatened," were deleted by Act 26/1963 with effect from 16 September 1963, and the whole clause was substituted by Act A514, paragraph 15(a), with effect from 15 May 1981. Article 150(1) now reads: "If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect." The added reference to public order, and the requirement that the Proclamation declare the ground, were not part of the 1966 text
On 14 September 1966 the Yang di-Pertuan Agong proclaimed a state of emergency throughout the State of Sarawak under Article 150.
Lord MacDermott in [1968] 2 MLJ 238 at 240Sinnadurai (1968) 10 Mal. L.R. 130
In November and December 2011, Parliament approved resolutions annulling the 1966 Sarawak proclamation, along with the 1969 and 1977 proclamations.
Parliament then passed the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, which amended clauses (5) and (6) of Article 150 by inserting the words "or in the Constitution of the State of Sarawak" after "this Constitution", and provided 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 effect of that amendment was that the federal Parliament could amend the Sarawak state constitution without following the procedure in Article 41 of the State Constitution, which provided that amendments be made by an ordinance enacted by the Sarawak legislature.
Article 150(5) allows Parliament during an emergency to make laws with respect to any matter if it appears to Parliament that the law is required by reason of the emergency, and Article 150(6) protects such laws from being invalid on the ground of inconsistency with the Constitution — subject to the exceptions listed in Article 150(6A).
Federal Constitutioncorroborated in Sinnadurai (1968) 10 Mal. L.R. 130
Using the new power, the Governor summoned a meeting of the Council Negri in late September 1966, which passed a vote of no confidence in Ningkan; he was then removed and Tawi Sli became Chief Minister.
The litigation over the emergency
Ningkan then sued claiming both that the proclamation of emergency was null and void and that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was on that account null and void.
In the High Court (Ningkan v Tun Abang Haji Openg and Tawi Sli (No. 2) [1967] 1 MLJ 46), Pike CJ (Borneo) rejected the argument that acts of the Yang di-Pertuan Agong under Article 150 "cannot be questioned in any court", holding that under Article 40 the Yang di-Pertuan Agong "is required to act upon the advice of the Cabinet in making a proclamation under article 150".
In Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 the Federal Court (Barakbah LP, Azmi CJ Malaya, Ong Hock Thye FJ) unanimously dismissed the appeal; the majority held that the court could not inquire into whether the Yang di-Pertuan Agong had been satisfied that an emergency existed, with Ong Hock Thye FJ dissenting on that point and holding the issue justiciable.
The Federal Court also held unanimously that the federal Parliament had power under Article 150(5) to alter the Constitution of Sarawak, and that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was therefore valid.
On appeal, the Privy Council (Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238) dismissed the appeal, holding that Ningkan had not shown the proclamation was made in fraudem legis, and did not decide the wider question of justiciability.
The Privy Council read "emergency" broadly, treating it as capable of covering "wars, famines, earthquakes, floods, epidemics and collapse of civil government".
Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238Sarawak Tribune
Where accounts differ
Whether the federal intervention was constitutionally proper is disputed. Andrew Harding, Visiting Research Professor at the Faculty of Law, National University of Singapore, writes that the federal government manipulated the state assembly to strip Ningkan of his majority and then proclaimed an emergency "in order to amend the state constitution", facilitating his removal — and that this set a precedent for later federal interference in Sabah and Sarawak.
The competing reading, adopted by the Federal Court majority (Barakbah LP and Azmi CJ Malaya), was that the Yang di-Pertuan Agong is "the sole judge" of whether a grave emergency exists, that the court should assume the Government "is acting in the best interest of the State", and that Parliament's emergency legislative power under Article 150(5) extended to the state constitution. 1 MLJ 119]
Ong Hock Thye FJ, dissenting in the Federal Court, held that he was "unable to share their view" that the Agong is the sole judge, that the circumstances bringing about a proclamation are non-justiciable, and that acts of the Executive which injuriously affect rights "should be subject to review by the courts". 1 MLJ 119]
Visu Sinnadurai, writing in the Malaya Law Review in 1968, argued that Article 150 contains a built-in safeguard absent from the Indian precedents the majority relied on, that the Agong acts on Cabinet advice so it is "the Federal government's decision and not the Yang di-Pertuan Agong's decision that is being challenged", and that it should be the responsibility of the courts to see whether the condition precedent in Article 150 in fact existed.
R. H. Hickling argued in 1975 that the language of Article 150 ("if satisfied") suggests the Head of State holds a personal discretion whose subjective state of mind can seldom be questioned; S. Jayakumar, then Dean of the Faculty of Law at the University of Singapore, disagreed, arguing from Article 40(1) and the Reid Commission report that the Agong acts under Article 150 on Cabinet advice and has no personal discretion.
Why the federal government acted is disputed. James Chin, in a 1997 study of federal intervention in Malaysia, attributes it to Ningkan's land tenure legislation antagonising Malay and Melanau politicians who then sought Kuala Lumpur's help, combined with federal irritation at Ningkan's insistence on the Twenty Points, his resistance to accelerating use of the national language, and his slowness in replacing expatriate civil servants.
Michael Leigh, in The Rising Moon: Political Change in Sarawak, is reported as describing the Land Bill as a "red herring" and an excuse to remove Ningkan, implying the real motive lay elsewhere.
Whether the factual conditions for an emergency existed is itself contested. The Sarawak Tribune reports that the Privy Council accepted there was no actual or threatened outbreak of violence in Sarawak at the relevant time, while also accepting that a breakdown of stable government and the spread of rumours and alarm prompted the proclamation.
Shukri Shahizam argues the Federal Court majority's reasoning is now untenable in Malaysian constitutional law and that Ong Hock Thye FJ's dissent better reflects the current position following Indira Gandhi v Pengarah Jabatan Agama Islam Perak.
Exact dates vary between accounts. The Sarawak Tribune and Malaysiakini place the Harley judgment on 7 September 1966 and the second no-confidence vote on 23 September 1966, with some accounts giving 8 September for the reinstatement and 24 September for the second removal.
Kalong Ningkan — Unsung Political WarriorMalaysiakini letters
Common questions
What actually happened in the 1966 Sarawak constitutional crisis?
Stephen Kalong Ningkan was removed as Chief Minister after Council Negri members sent the Governor a signed letter saying they no longer supported him, and Penghulu Tawi Sli was appointed in his place. Ningkan challenged the removal, and the High Court held that a loss of confidence had to be shown by a formal Council Negri vote, not the letter.
Why did the court put Ningkan back as Chief Minister?
The High Court put Ningkan back because it held that the Governor could not treat private representations from legislators as proof that Ningkan had lost the Council Negri's confidence. Under the Sarawak Constitution as interpreted by the court, that question could only be determined through a formal vote in the legislature, so the dismissal was declared void.
How was Ningkan removed again after the court ruling?
Ningkan was removed again after an emergency was proclaimed throughout Sarawak on 14 September 1966 and Parliament passed an emergency law affecting the Sarawak Constitution. The law allowed the Governor to summon the Council Negri, suspend standing orders and direct the Speaker. A meeting was then held in late September, the Council Negri passed a no-confidence vote, and Tawi Sli became Chief Minister.
Could Parliament change Sarawak's constitution during the emergency?
The Federal Court held that it could. It ruled unanimously that Article 150(5) gave Parliament power during the emergency to alter the Sarawak Constitution, making the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 valid. The amendment meant the federal Parliament could make that change without using Article 41 of the Sarawak Constitution, which otherwise required an ordinance enacted by the Sarawak legislature.
Why do people still disagree about the 1966 emergency?
They disagree because the courts, legal writers and later commentators took different views of whether the emergency should have been open to judicial review and why the federal government acted. The Federal Court majority treated the Yang di-Pertuan Agong as the sole judge of whether a grave emergency existed; Ong Hock Thye FJ disagreed. Andrew Harding describes the intervention as aimed at amending the state constitution, while James Chin and Michael Leigh are reported to differ on the political motive.