The court, as guardian of the law, has to interpret the provisions of the constitution from the words alone, without importing extraneous rules of law, practice or convention. However, before exercising his prerogative powers, under modern conventions, the King acts on the advice of his ministers.
As far as the appointment and removal of the Governor of Sarawak these are governed by the Article 1(1) and (2) of the Sarawak Constitution and the King will act accordingly upon the advice of the responsible minister of the Sarawak government or by Sarawak Cabinet.
Therefore, be it known to citizens that the exercise of the power to remove the Governor has to follow the constitution and the King should be properly advised by the Sarawak Government of the King’s power in exercise of his powers under Article 1(2) of the Sarawak Constitution. Legal opinion is that, in Article 1(2) Sarawak Constitution, there is a condition precedent to be fulfilled first before the governor could be removed, that this, a vote has to be taken in the Dewan Undangan Negri Sarawak by the members who supported the removal of the governor before the King could be advised to remove the governor.
It is the humble opinion of legal experts that the court has the jurisdiction to enquire whether in exercising the King’s discretion under Article 1(2) of the Sarawak constitution, the King has overlooked the condition precedent required by the clause. So, just that the King has certain discretion does not mean that ipso facto the jurisdiction of the court is ousted.
The Cabinet Ministers by their oath of office has to protect the constitution and should advise the King about the Constitution accordingly so that the King would not act morally unconstitutional against the Constitution, although, not legally wrong.
It is observed in the United Kingdom, the exercise of prerogative powers had been tested in Laker Airways ltd v Department of Trade [1977] QB 643 where Lord Denning stated that “the law can (..) intervene if the discretion [under prerogative] is exercised improperly or mistakenly”.
The case of the removal of Dato Stephen Kalong Ningkan from the chief minister post by the Governor of Sarawak in June 1966 and Ningkan’s re-instatement by the High Court in early September 1966 is still fresh in the minds of most Sarawakians. This case clearly shows that the exercise of prerogative powers have to be in accordance with the law and may all of us not to overlook this as like Ningkan’s case can lead to a constitutional crisis.
It was widely believed that the ouster of Ningkan was a result of interference by the Malaysian federal government due to him being a strong advocate of greater state autonomy.
VOON LEE SHAN
PRESIDENT, PARTI BUMI KENYALANG