Speech by DAP Secretary-General and Member of Parliament for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on Friday, 31st Oct. 1975 on the Government motion to refer Fan Yew Teng’s question to the Committee of Privileges.
Motion unconstitutional, undemocratic and politically-motivated to punish the Opposition.
The Deputy Minister of Co-Ordination of Public Corporation has moved a motion which reads: “That his House, in view of the conviction and sentence by the High Court upon the Humble Encik Fan Yew Teng, a member of this House for Mengelembu, resolve that the question whether he has become disqualified for membership of this House be referred to the Committee of Privileges and that the Committee be instructed to report on in to this House.”
I am shocked this motion should come up at this time, and considering its timing and circumstances, we on this side of the House regard it as not only unconstitutional, undemocratic, but politically motivated to intimidate and punish the Opposition Parliamentarians.
Encik Fan Yew Teng’s conviction and sentence by the High Court for publishing an allegedly seditious speech in the DAP party journal, the Rocket, did not take place yesterday or last week, but 10 months ago, on 13th January 1975.
Why wasn’t this matter taken up during the parliamentary meetings before October, but only taken up now?
We know that Members of Parliament from the various Barisan Nasional component parties, the UMNO, HCA, GERAKAN, PAS and PPP and the Sabah and Sarawak components, are very furious at the two motions which we moved on he first day of the present meeting or Parliament, one on the preservation of Chinese and Tamil primary schools, the other one on orruption in high public places.
If this a punitive, retaliatory action of the Barisan Nasional Members of Parliament?
Is this also a retaliatory and punitive action of the Government for the constant challenging of the legality and constitutionality of the various repressive security measures taken by government,
The people will still remember that in February this year, an illegal attempt was made to deprive Sdr. Fan Yew Teng of his parliamentary seat and the people of Mengelembu their elected representative, when an election writ was issued by the Elections Commission for a Mengelembu by election to be held on March 15th.
Although Sdr. Fan Yew Teng has appealed against both the conviction and the sentence at the time, and had not exhausted all the legal remedies open to him to set aside the High Court sentence and judgment, the Government disregarded Sdr. Fan Yew Teng, and wanted to bring about a fait accompli by having a by-election held in Mengelembu.
The DAP want to Court and our legal and constitutional position was vindicated when the High Court declared the Menglembu by-election writ null and void and stopped the by-election. The government was ordered to pay costs.
The Federal Court dismissed Sdr. Fan’s appeal on 16th July, when the Dewan Rakyat was in the midst of its July session, and although the Dewan Rakyat went on with its sittings for another two weeks until 31st July, no such motion as the present one was introduced at the time.
The question that begs for answer is, why the motion now?
Sdr. Fan is now in the process of appealing to the Privy Council against the decision of the Federal Court.
The Acting Speaker yesterday read out a letter which the Timbalan Pendaftar Mahkamah Tinnggi wrote in reply to the Clerk of Parliament, Dato Azizul, dated 29th August, which reads:
“Untuk maklumat Datuk, seterusnya Tetuan Karpal Singh, Wong & Co. , Peguambela kepada Yang Berhomat Encik Fan Yew Teng menulis kepada Ketua Pendaftar Mahkamah Persekutuan pada 9hb Ogos, 1975, memohon salinan-salinan sah catitan-catitan perbicaraan untuk membolehkan beliau membuat permohonan untuk mendapat kebenaran khas (special leave) untuk merayu ke Bawah Buli Yang Maha Mulia Seri Paduka Baginda Yang di Pertuan Agong ( Privy Council).
“Memandang kepada surat Peguambela tersebut nampaknya, setakat ini yang Berhomat Encik Fan Yew Teng adalah berniat untuk membuat rayuan ulangbicara kepada ke Bawah Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong (Privy Council).”
Sdr. Fan’s lawyers, Karpal Singh, in fact wrote to the Attorney-General, Tan Sri Kadir, last month to inform him that the appeal papers have been dispatched to England for action to be taken to appeal to the Privy Council. I was in touch with Mr. Karpal Singh only moments ago, and he informs me that he had received a communication from the London Solicitors informing him that he case is the process of being submitted to the Privy Council.
Let me stress here, that there is no new element or circumstances between January 13 and today to explain or justify the introduction of this motion today.
The appeal to the Federal Court, and now the appeal to the Privy Council, are only different steps in the process of appeal.
In view of the fact that the case in point in still in the hands of the Courts, the Dewan Rakyat should defer any decision or consideration of this matter until the entire legal process has been exhausted. If the House passes this motion, it will set the deplorable precedent of this House interfering in the processes of the courts and undermine the principle of the Rule of Law.
This motion is also against the spirit of the Constitution, and furthermore, unconstitutional.
Clause 53 of the Constitution reads:
“If any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final.
“Provided that this Article shall not be taken to prevent the practice of the House postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification.)”
In line with this Constitutional provision, therefore, the House should not take any decision “in order to allow the taking or determination” of the Privy Council appeal proceeding which have been initiated and which would affect the decision of the House.
Secondly, the qualifying circumstance in the first part Clauses 53 that the House shall take a decision “If any question arises whether a member of a House shall of Parliament has become disqualified for membership” does not exist.
Clauses 50(1) of the Constitution stipulates:
“(1) If a member of either House of Parliament becomes disqualified for membership of that House his seat shall become vacant.”
It has been legally determined that the seat of Menglembu has not become vacant, which is why the High Court stopped the Menglembu by-election on 12th March 1975.
Where there is no vacancy in Menglembu Parliamentary constituency, therefore, it logically follows that no question arises as Sdr. Fan’s status as a Member of Parliament. For the Dewan Rakyat to proceed with this month despite the High Court judgment that there is no vacancy would be a gross interference with the judicial process and undermine public respect in the Rule of Law and the Independence of the Judiciary.
I suggest that this motion with withdrawn until Sdr. Fan has exhausted all his legal remedies, for such a withdrawal would positively enhance public confidence in the Rule of law, respect for the Constitution and the Independence of the Judiciary.
Should the government, relying on its brute majority in the Chamber, decide to ram through this undemocratic, unconstitutional and politically-motivated Motion, the DAP would stage a mass walk-out in protest against such triple violations, against the Constitution, the Rukun Negara and the spirit of democracy.