STEPHENKALONGNINGKANvTUNABANGHAJIOPENGAND TAWI SLIOn the 16th
June 1966, the Governor of Sarawak had received aletter signed by
21 members of the ouncil !egeri stating thatthey no longer had any
con"dence in the #lainti$, their hief%inister& 'he Governor
informed the #lainti$ that fromre#resentations he had received he
was satis"ed that the#lainti$ had ceased to command the con"dence
of the ouncil!egeri and invited the #lainti$ to resign& 'he
#lainti$ in his re#ly informed the Governor that theGovernor(s
views as to the loss of con"dence of the members oftheouncil !egeri
inthe#lainti$wasnot su##ortedbythemeeting of the ouncil!egeriheld
on the 1)th June and the#lainti$ in the same letter re*uested that
he be su##lied withthe names of the #ersons who had signed the
re#resentations&+n re#ly to this letter the Governor informed
the #lainti$ that asthe #lainti$ had refused to tender the
resignation of membersof the Su#reme ouncil, in accordance with
,rticle -.1/ of theonstitutionof theStateof Sarawak, hedeclaredthat
the#lainti$ and other members of the Su#reme ouncil had
ceasedtoholdo0ceanda##ointedtheseconddefendant ashief%inister
forthwith& 'heGovernor alsoforwardedalist of thenames of
#ersons who had signed the re#resentations asre*uested by the
#lainti$&'he #lainti$ then commenced #roceedings against
theGovernor and the second defendant&Held:'he Governor of
Sarawak was limited by ,rticle 6.1/ ofthe onstitution of Sarawak to
a##ointing as hief %inister amember of the ouncil !egeri who in his
2udgment was likely tocommand the con"dence .and a##roval/ of the
ouncil !egeriandthereforeit followedbysection21of
the+nter#retationOrdinance that only when the ouncil !egeri had
shown lack ofcon"dence .and lack of a##roval/ could the Governor(s
#ower todismiss, if it e3ists, be e3ercised& 4nder the
#rovisions of theSarawak onstitutionlack of confdence ma
!edemon"#$a#ed onl ! a vo#e %n #&e 'o(nc%l Ne)e$%&Secondly,
if the onstitution of Sarawak could be construed
asgivingtotheGovernora#owertodismissthehief%inisterwhen he had
refused to resign and failed to advise a
dissolutiontheninthiscasethe#lainti$wasnever
givenareasonableo##ortunity to tender his resignation or to re*uest
for adissolution&TUNDATUHAJI *USTAPHABINDATUHA+UNv TUNDATUK
HAJI *OHA*ED ADNAN +OBE+T, -ANG DI.PE+TUANEGE+I SABAH / DATUK
JOSEPH PAI+IN KITINGANOn the morning of ,#ril 22, 1956, after the
State elections inSabah, the #lainti$ took the #rescribed oath of
o0ce of a hief%inister beforethe"rst defendant&
'hesamedaythe"rstdefendant #ur#orted to revoke the a##ointment as
hief%inister of the #lainti$& On the same day, the "rst
defendanta##ointed and swore in the second defendant as hief
%inister&'he#lainti$suedforadeclarationthat
the"rstdefendant(srevocation of the #lainti$(s a##ointment as hief
%inister andthe a##ointment of the second defendant as the hief
%inisterwereultravirestheonstitutionof Sabah&
'he#lainti$alsoclaimedanin2unctiontorestraintheseconddefendant
frome3ercising the #owers of the hief %inister&Held: T&e
Head of S#a#e #&e$efo$e canno# con"#%#(#%onalle0e$c%"e o$ make
&%" 1(d)men# on #&e a22o%n#men# of a'&%ef *%n%"#e$
3%#&o(##ak%n) %n#o acco(n# #&e n(m!e$of elec#ed"ea#"
"ec($ed!eac&andeve$2ol%#%cal2a$#and, for that matter, by the
inde#endent candidates, inthe election& +t is clear that, if he
omits to take into account thenumber of seats obtained by any
#articular #olitical #arty which#artici#atedintheelection, it
cannot besaidthat hehade3ercised or made his 2udgment under ,rticle
6.1/ of the Stateonstitution, for, if he did so, he would be acting
unlawfully andunconstitutionally by ignoring or not com#lying with
there*uirement, in #articular of ,rticle 6.1/&DATUK 4DATU5 A*I+
KAHA+ BIN TUN DATU HAJI*USTAPHAvTUN*OHDSAIDBINKE+UAK-ANGDI.PE+TUA
NEGE+I SABAH / O+S7ollowingtheSabahstateelections, 8atuk9airinwas
a##ointedhief %inister of Sabah, and other elected members from his
#arty,including the #lainti$, were a##ointed to form the State
abinet&,fter threemembersof
theState:egislative,ssemblydefectedfrom his #arty to the
o##osition, 8atuk 9airin re*uested the ;89!,the "rst defendant, to
dissolve the ,ssembly but the "rst defendantwithheld his
consent& 8atuk 9airin later tendered his resignation
ashief%inisterofSabah, butdidnottendertheresignationoftheother
members of his abinet&'he"rst defendant
a##ointedtheseconddefendant asthenewhief %inister, and then
a##ointed the third to ninth defendants asthe other members of the
abinet& 'he #lainti$ sought a declaration that since there was
no motion ofcon"dence in the ,ssembly against 8atuk 9airin, his
resignation was#ersonal to him and did not a$ect the a##ointment of
the #lainti$ asa 8e#uty hief %inister& 'he #lainti$ also sought
a declaration thatthe "rst defendant had acted ultra vires the
#rovisions of the SabahStateonstitution.(theonstitution(/
bya##ointingthethirdtoninthdefendantsasmembers oftheabinet
whenatall materialtimes the a##ointments of the #lainti$ and the
other abinetmembers had not been revoked nor had they
resigned&Held:'hefact of a hief
%inistercea"%n)#ocommand#&econfdence of a ma1o$%# of #&e
mem!e$" of #&e A""em!l can!e ev%denced ! va$%o(" "%#(a#%on" and
c%$c(m"#ance"6 +t canbethroughtheknowledgeof thehief %inister
himself fromthesurrounding circumstances or it can be through the
actual voting inthe ,ssembly by its members&&&'here is
nowhere in the onstitutiontosaythat theonlyevidenceof suchfact must
bethroughtheactual vote in the ,ssembly&+t follows, therefore,
that if the hief %inister does not tender theresignation of the
other members of his abinet wherein the abinetis to be treated as
dissolved under the circumstances envisaged byart -.1/ of the
onstitution, their o0ces are deemed to have beenvacated&
owever,counselforthe defendantssubmittedthatwith theconveyingof
the9%(sdecisiontothe=ingcou#ledwiththeletter of revocation sent to
the #lainti$, the act of revocationwas com#leted, and the #rocedure
ado#ted met there*uirement of art )1.6/&Held:,s there was no
#rescribedformat of re*uiringany#articular #erson to sign the
letter of revocation, the 9% himselfcouldsigntheletter
toconveythedecisiontothe#lainti$&,lthough there was nothing in
the 9%(s letter to show that theletter was written at the re*uest
of the =ing, the =ing had beenadvised and informed about the
decision as evidenced by thea0davit of the#rivatesecretary&
'hea0davit evidencelentsu##ort to the statement in the 9%(s letter
that he hadinformed the =ing about the revocation& 'he letter
of revocationhad satis"ed the re*uirement of ,rt )1.6/ of the
7ederalonstitution& 'he 2udge stated that ?common #rudence
dictates that as the=ingcouldonlyactonadvice,
the9%must"rstformulateadecisiontodismissthe#lainti$& !e3t
ste#isfor the9%toinform the =ing about his decision&
'hereafter, the decision is tobe conveyed to the
#lainti$&?Da#o8 Se$% I$ H1 *o&ammad N%9a$ Jamal(dd%n v
Da#o8 Se$%:am!$ A!d(l Kad%$,fter the general election, 9akatan
@akyat .(9@(/ won 11 seatsout of the 69 seats in the State
:egislative ,ssembly of 9erak.(:,(/& 'he remaining seats went
to @> on the same daywhere he was informed that his re*uest for
dissolution of the :,was re2ectedby >@>& >ewas
thendirectedtotender theresignation of the e3ecutive council, as he
no longercommanded the con"dence of the ma2ority of the members
ofthe :,& 'he a##ellant did not com#ly with the direction given
by>@>& On 6 7ebruary 2AA9 >@> a##ointed the
res#ondent as the new%, re#lacing the a##ellant&
8issatis"edwiththedecisionof >@>, thea##ellant claimedthat
there had been no motion of no con"dence against him inthe :, and
that he had not resigned from the #ost of %&HeldB 'here is
nothing in the State onstitution sti#ulating thattheloss of
con"denceinthe%may only beestablishedthrough a vote in the :,&
Cvidence of loss of con"dence in the% may be gathered from other
e3traneous sources #rovided,they are #ro#erly established& Such
sources should include theadmission by the % himself andDor
re#resentations made bymembers of the :, that the % no longer
en2oys the su##ort ofthe ma2ority of the members of the :,&
'here was evidence ofsuch admission by the a##ellant himself and
from thedemon"#$a#%on of "(22o$# ! #&e ;< mem!e$" of #&e
LAfo$ BN, thus, giving
