Case review: Tun Datu Mustapha bin Hj Harun v Tun Datu Mohamed Adnan Roberts

Brief facts: On 5.30 am April 22, 1985 Tun Datu Mustapha (the leader of a political party USNO) took an oath of office as Chief Minister at the residence of the Yang Di Pertua (the Head Of State). This was done after over two hours of attempts to secure a consensus before a High Court judge and then State Attorney General that it is appropriate and legitimate for him. The oath taking ceremony did occurred even before the elections results were officially announced of a highly contested state election in 1985 which saw the emergence of Kadazan political presence through Parti Bersatu Sabah (PBS).Later on the same day the Governor revoked the appointment of Tun Datu Mustapha as CM and at about 8 pm swore Datuk Pairin in as Chief Minister. The results of the election were that PBS secured 25 sets with an additional one from an Independent candidate whilst USNO lead by Tun Datu Mustapha secured 16 seats and Berjaya (lead by the loosing Datuk Harris Salleh) six (6) seats. An action was filled by the plaintiff challenged his removal from the post of Chief Minister of the States of Sabah and the appointment of the second defendant to that post. The defendant raised a preliminary objection that the court had no jurisdiction to hear the action. Issue: The issue rose from the defendant that the plaintiffs issues was not justiciable. Furthermore the defendant also rose that the court was not the correct forum for hearing the plaintiff complaint. Then, the declarations and injunction sought in the statement of claims were not issues on which the court would grant declaratory orders or injunctions. Plus, the appointment of Chief Minister is within YDPN and subsequent to such appointment, the position of Chief Minister is a privilege of the legislative Assembly, and this privilege had been exercised by the Legislative Assembly by vote of confidence on May 30, 1985. Subsequent to that on 3 August 1985, matters in relation to the appointment of the Chief Minister had been decided by the Legislative Assembly and therefore the court should take cognizance of these and decline jurisdiction as a matter of principle.

Decisions: On the first issue it was decided that the issue of dismissal and the alleged powers of dismissal as pleaded in the defense were issues that were legal and constitutional in the nature and were therefore issues that were justiciable and within the jurisdiction of the court to try. If the issue was as to how the 2nd defendant exercised his discretion then the issue would not be justiciable. However, the present issue was not of nature. The issue was whether the alleged appointment was lawfully and constitutionally valid. Hence the issue was not justiciable. On the second ground of objection the authority and function of the L.A as conferred by the state constitution were separate and distinct. It was no part of the authority and function of the L.A to appoint the CM which authority fell exclusively within the powers and functions of the Head of State. Although the main issues in this action were legal matters some did have a political flavor, but this factor alone does not have the effect of ousting the jurisdiction of the court. The confidence of the L.A in any appointee of the Head of State as CM formed no part of this action, which basically but not exhaustively, included issues regarding appointment and dismissal, with other related issues. As regard to the third ground of objection the court power to make declaratory judgment judgments or orders was confined to matters which were justiciable and the binding declarations the court could make were declarations as to legal or equitable rights and not moral, social or political matters. The main issues involved in this action were legal and constitutional in nature and considerations of legal principles and the interpretation by the federal and the state constitution were concerned. If at the trial the court finds that on the issue of appointment, the contention of plaintiff succeeds, this would mean that a legal right was involved. However, although therefore, the 3rd ground of objection fails whether such reliefs should be granted would have to be considered at the trial. It was too wide a proposition to state that the right to be a CM was a political right, as, by virtue of his appointment by the Head of State, he had a legal right to be the CM until that right was terminated by an adverse decision of the majority of members of the L.A. A distinction should be drawn between the legal right to be L.A. after appointment by the Head of State and rights enjoyed or exercised by a CM within the L.A. Although in principle the Courts have no power to interfere with the internal management of the L.A., those rights that were to be exercised out of the L.A. were under the protection of the Court. For the purposes of these proceedings, in matters falling within the province of the Courts to decide, any resolutions passed in the L.A. on the same matters would not bind the Court. It would be a startling and unacceptable situation if the position were otherwise as it would permit the L.A. to encroach on the province of the Courts and take over their functions. Although mention had been made that the power of appointment of the Head of State may be reserved

power, the correct view would be to regard it as a Constitutional power. Under the state constitution the matter of "appointment" and that of "confidence of the L.A." were separate and distinct. The matter of appointment which was the issue in the case was not a matter of parliamentary privilege. There was no question of the Court declining jurisdiction.

Case Review: Stephan Kalong Ningkan v Tun Abang Hj Openg (No.1)

Brief fact: On 16 June 1996, the governor of Sarawak received a letter signed by twenty one
members of the State Legislative Assembly, the council Negri, including a rubber stamp stating that the signatories no longer had any confidence in their Chief Minister. On the same day letter was wrote to Stephan Kalong Ningkan (chief Minister) informing him that he had ceased to command the confidence of the council Negri and invited him to resign from his post. The next day, 17 June, the Chief Minister informed the Governor that his view as the loss of confidence of the council negri was not supported by the meeting of the council Negri held on 14 June. However, the governor on the same day informed the Chief Minister that he had lost the majority confidence of majority in the council Negri. Eventually, he refused to tender resignation of the members of the supreme council in accordance with article 7(1) of Sarawak Constitution, governor then declared the chief minister had ceased to hold his post. Then also the second defendant was appointed as the new chief minister by the governor. On contrary, Stephan Kalong Ningkan had argued that the governor was wrong and acted ultra vires as to dismissing him by relying on the letter by the members of the council negri to determine the loss of confidence in the council. The proper way was to be should have been the vote of no confidence in council Negri. It was also argued by the plaintiff having loss of 21 vote on him had not to cause him to loss of confidence since it was not a majority in State Assembly which had forty two members. The governor therefore was not justified to dismiss him as the was no majority vote against plaintiff. It is also argued by plaintiff that the governor could not dismiss him no power granted to him to dismiss a Chief Minister and secondly, even if he had the power he could not exercised it in arbitrarily. The arguments were centered on the Sarawak Constitution.

Issues and Decisions: The issue rose in the case was that the meaning of the wording in article 7(1) of the Sarawak constitution that the premier no longer commsnd the support of a majority of the members. This issue was referred to the case of Adegbenro v Akintola, where the court held thatit had to consider if the Premier of Western Nigeria no longer enjoyed the support of the majority of the members. It was the cited that the Nigerian was justified because it applied the word support whereas the Sarawak Constitution used the word

of confidence which implies the loss of confidence of majority members in the council. Furthermore, it appears method to assess the loss of confidence was also on dispute. It appears that whether the vote on the floor on the house is the only method to dismiss the chief minister. The federal Supreme Court in Nigeria in Adegbenro was of the opinion that constitutionally, the lack of support could only be determined by decision or resolution on the floor of the house. On appeal the Privy Council in that case however took the opposite view and held that it was not the only method to assessed loss of confidence. The court having distinguished Adegbenro on the ground that was a difference between loss of support and loss of confidence then went on to rule that by the provision of Sarawak constitution, lack of confidence could only be demonstrated I the council negri. In addition, it was also decided that the CJ accepted the Article 7(1) of Sarawak constitution that all Ministers other than Chief Minister hold office at the governor pleasure. This implies that governor could not dismiss the Chief Minister at any circumstances. It was supported that, even if power given to the governor to dismiss the Chief Minister it could not be exercised when the Chief Minister had lost the confidence from the members, had refused to resign or failed to advise the governor for the dissolution. It was argued then by the defendant that in this situation at least the governor having the discretion to dismiss as otherwise the constitution would become unworkable. This was then rejected by the court as the CJ felt that just because the Chief Minister or Governor doesnot go when he ought to go does not meant it was sufficient reason for implying the constitution an enforcing power vested in some individual. Consisitent with the case of Adegbenro, the chief minister could not be removed when he refused to tender resignation. Plus the court was also did not resort to constitutional conventions to resolve the issue before him. Finally the court also concluded that in Sarawak constitution the chief minister may advise dissolution even though he has not as yet loss the confidence of council negri.