Sarawak constitutional crisis

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. In the 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. The 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. The 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's 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. On motive, James Chin points to Ningkan's land legislation and his insistence on the Twenty Points as what turned both local rivals and Kuala Lumpur against him, while 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. This page does not decide between those readings.