NOC rule in Kelantan

I rise with a heavy heart, for what Parliament is about to do by invoking Article 150 of the Federal Constitution to suspend the Kelantan State Constitution and impose NOC-type of rule in the State is a subversion of the democratic basis of the Malaysian Constitution.

If parliamentary democracy and the Federal-State system is to survive, it is paramount that those in power realise and understand that whatever the political differences or however intense the party rivalries, democratic principles and the fundamental safeguards in the Constitution for a democratic society should not be sacrificed in the furtherance of partisan political interests.

Government Ministers have often waned that the communists want to use democracy to destroy democracy”; but let us remember that in many Asian and African countries, ruling parties through their dominant parliamentary majorities have used democracy to destroy democracy” and instituted instead authoritarian and totalitarian regimes.

It is not good enough that Parliament has the powers under Article 150 of the Malaysian Constitution to impose NOC-type of rule in Kelantan; for strict and scrupulous adherence to the laws of the land can also lay the basis for an undemocratic, authoritarian, and even totalitarian system in Malaysia.

As the Deputy Dean of the Law Faculty of the University of Malay Nik Rashid, said at the recent Law Conference on Erosion of Fundamental Rights,’ unless there were checks and balances on the executive powers, it was not unreasonable to suggest that there would come a day when executive could table a Bill in Parliament amending the Constitution giving it the power to legislate and to amend the Constitution by regulation. And this too will be legal!

What Parliament, the people of Kelantan and Malaysia, and the world have to be satisfied is that the situation in Kelantan justifies the invocation of Article 150 to impose NOC-type of rule, and not that the Barisan Nasional or more specifically, UMNO, has the requisite number of Parliamentary votes to legislate emergency laws under Article 150 to impose NOC-type of rule in Kelantan.

It is therefore necessary to trace the background of the events in Kelantan, leading to this dreadful Bill before Parliament this evening.

In mid-September, the Menteri Besar of Kelantan, Datuk Haji Mohamed Nasir, was given an ultimatum by his own Party, the Kelantan PAS Liasion Committee, that he either resigned as Menteri Besar by September 20 or face a vote of no confidence in the State Assembly, where PAS holds 22 of an Assembly total of 36 seats.

Datuk Haji Mohamed Nasir refused to resign. He claimed that the move was made against him because he had withdrawn a concession of 350,000 acres of land given to the Timbermine Company and frozen 240,000 acres of land at the Kelantan-Perak border which was believed to contain high grade tin ore deposits.

On September 29, after the PAS Central Executive Committee meeting it was announced that Datuk Mohamed Nasir had been expelled from PAS. Subsequently, it was admitted that the expulsion of Datuk Mohamed Nasir was an error, apologies were tendered, and another meeting held on October 10, where Datuk Mohamed Nasir was ‘correctly expelled by PAS Central Executive Committee by 13 votes for, 7 against and two abstentions.

On 15th October 1977, the Kelantan State Assembly passed a vote of no confidence on Datuk Mohamed Nasir by 20 votes in support, with Datuk Haji Mohamed Nasir, 13 UMNO Assemblymen and one MCA Assemblyman staging a walk-out.

Meanwhile, public demonstrations and meetings, which had started in September in support of Datuk Nasir when he was asked to show cause why he should not be expelled from PAS, increased in frequency and size-all the time, with the knowledge, consent and even encouragement of the higher authorities in Kuala Lumpur. In fact, in one of the public rallies, no less a person than the Kelantan Chief Police Officer, the guardian of law and order, was there to open the door of Datuk Mohamed Nasir’s car to welcome him to a rally without police permit!

Thus, on Thursday, 22nd September 1977, It was announced publicly that a mmoth demonstration of more than 100,000 people would be held Padang Merdeka, Kota Bahru on September 24 to express support for Datuk Mohamed Nasir.

Bernama reported that on 24th September, some 60,000 people thronged the Merdeka Padang to demonstrate their Support for Datuk Mohamed in an hour-long rally.

Following demonstrations after the No Confidence Motion on 19th October, a 24-hour curfew was imposed in Kota Bahru which was later extended to Kubang Krian. What is noteworthy is that after the imposition of the 24-hour curfew, public rallies and demonstrations were still allowed in other parts of Kelantan.

My party supports the holding of public rallies, as in a democratic country, there should be freedom for political parties to have direct access to the people, as by means of public rallies, to explain to them what is happening in the country, and their political points of view. What is strange is that while the police have imposed a general ban on public rallies throughout the country, in Kelantan public rallies supporting Datuk Mohamed Nasir were allowed, even without police permits!

This raises the questions as to why the authorities in Kuala Lumpur, who are finally in charge of the police, allowed and even encouraged such public rallies to be held, whether some highly-placed and influential national personalities were involved in the back-stage.

Meanwhile, what is known as the four-point Mahathir formula was mooted, proposed, and counter-proposed. The Mahathir formula is the imposition of NOC type of government in Kelantan like the one headed by Tun Razak in 1969, after the suspension of the Kelantan State Constitution under Article 150 of the Federal Constitution.

Article 150 of the Federal Constitution provides that if the Yang di-Pertuan Agong (acting on Cabinet Advice) is satisfied that a grave emergency exists whereby the security or economic life of the Federation or any part thereof is threatened, he is empowered to issue a proclamation of emergency, 2nd Parliament may legislate emergency laws to suspend State Constitutions and impose undemocractic NOC-type of rule.

On 2nd November, the Prime Minister, Datuk Hussein Onn, met PAS leaders and gave them until yesterday (November 7, 1977) for a reply on the Mahathir formula. PAS had yesterday reiterated its rejection of the Mahathir formula imposing NOC rule in Kelantan.

It must be very rare that the threat of a declaration of emergency the imposition of NOC rule has been used so blatantly in a conflict between and the suspension of popularly-elected system of government through political parties and personalities.

This is deplorable. For security should not be used as a blackmail in political negotiations. Either a grave emergency exists or it does not exist. If a grave emergency exists, then a Proclamation of Emergency should have been made long ago, and not dependent on acceptance or rejection of the Mahathir-formula. If fact, this is proof that there are no conditions justifying an Emergency situation, for Emergency situations justifying the Proclamation of Emergency waits for no person!

The Question that is uppermost in the minds of the people today is whether the Proclamation of Emergency under Article 150 and the imposition of NOC-type of rule is dictated by weighty considerations ‘whereby the security or economic life of the Federation or any part thereof is threatened’, or whether it is being used indiscriminately and even frivolously to further certain partisan political interests.

I have the greatest respect for the integrity and honesty of the Prime Minister, who has introduced this Bill believing that this is in the national interest. But we have the right to question whether he, or even the Deputy Prime Minister, is in possession of all the full facts or whether they are armed with sufficiently irrebuttable justifications for the resort to Article 150 to suspend the Kelantan State Constitution.

Members of the House will remember that on Sept. 19, 1966, proclamation of State of Emergency in Sarawak was made and a Bill, The Emergency (Federal Constitution and Constitution of Sarawak) Bill 1966 was rushed through both Houses of Parliament to suspend the Sarawak Constitution in order to unseat the Chief Minister, Stephen Kalong Ningkan, after the Sarawak High Court had declared that the dismissal of Stephen Kalong Ningkan was unconstitutional and that he was still the Chief Minister.

Let me recapitulate briefly the facts of the Stephen Kalong Ningkan case. On June, 14, 1966, 21 members out of 42 Council Negeri members sent a letter addressed from Kuala Lumpur to the Governor of Sarawak stating that they no longer had any con fidence in Stephen Kalong Ningkan as Chief Minister. On June 16, the Governor’s private secretary wrote to Ningkan that the Governor being satisfied on the representation of the majority in the Council Negeri that Ningkan had ceased to command their confidence, Ningkan was requested to resign. When Ningkan refused, pointing to a meeting of the Council Negeri on 14th June, 1966 ‘which did not appear to support His Excellency’s view that I have lost the confidence of the majority of its members’ the Governor on June 17 dismissed Ningkan as Chief Minister and appointed Penghulu Tawi Sli as Chief Minister.

Ningkan instituted proceedings in the Sarawak High Court requesting a declaration by the Court that the Governor had acted unconstitutionally and that his dismissal as Chief Minister was ultra vires and void. The High Court of Sarawak declared in a judgment on 7th Sept. 1966 that the Governor had no power to dismiss the Chief Minister under the present Constitution of the State of Sarawak and that the only way to show the loss of confidence of the Members of the Council Negeri in its Chief Minister was on the floor of the House. The Court declared Stephen Kalong Ningkan as Chief Minister of Sarawak.

A State of Emergency in Sarawak was declared on Sept. 14, and on Sept. 19, Parliament passed emergency legislation suspending the State Constitution of Sarawak on the ground that a serious situation which poses a grave threat not only to the security of the State of Sarawak but also to the whole country had arisen.

That there was a constitutional crisis in Sarawak was apparent, but was there a emergency situation as provided for by Article 150. Was there a genuine emergency situation?

Here, let us see what one of the dramatis personae in the Stephen Kalong Ningkan crisis had to say in retrospect. I refer to the book, the “Politics of Fe de ralism” by Bruce Ross-Larsen, virtually a autobiography by Senator Syed Kechik.

This is from page 44, on the thickening plot before the Sept. 7 High Court Judgement aeclaring Ningkan was still Chief Minister: Syed Kechik saw that if the courts were to deliver a final judgement in Ningkan’s favour, little could be done to compel Ningkan to convene Council Negeri immediately. According to the Sarawak constitution, the Council could be convened only on the instruction of the State Cabinet, of which Ningkan would again be head, to the Governor.”

And further on, on page 45: “An alternative plan had to be developed, and Syed Kechik saw this as residing in the Sarawak constitution. The gaps in the constitution which made it impossible for the Chief Minister to be dismissed and for the Council Negeri to be convened, even though the Chief Minister did not have majority support, had to be closed. This could be done by Kuala Lumpur’s suspension of constitutional process in the state.” Here, we must note that this plan for emergency and suspension of the State Constitution was being mooted even before the High Court Judgment.

The book went on: “To begin to set the stage for such federal action, Syed Kechik drafted statements for release to the press on August 28 regarding the gravity of the security situation because of political tensions and the communist threat. A petition was sent by the Council Negeri Members to the Yang di-Pertuan Agong and copied to the Prime Minister, in which the events were recounted of the preceding two-and-a-half months, the legal aspects were detailed of the likely suspension of constitutional government because of the impasse in the courts, and a request was made for special action to prevent security and administrative chaos.”

The book also described how as a precaution again st Ningkan’s persuading fence-sitters to join his forces before the judgement was rendered the 25 members of Council Negeri were flown to Kuala Lumpur to ensure that they would remain resolute in their backing of the Tawi Sli government.

When judgement was delivered by the Sarawak High Court reinstating Stephen Kalong Ningkan as Chief Minister, Syed Kechik immediately got on to Tun Razak to say that Ningkan had to be brought doWn at whatever cost financial or constitutional. He was sent $20,000 to cover the expenses of ministers who had to move out of government houses and of Council members who had to be cloistered until matters were resolved. The rest of the chapter went on to describe how Syed Kechik engineered the condit.os to justify declaration of emergency. Thus, on page 51, the book said:

“On September 14, Syed Kechik reported to Tun Razak through ha military channels that SUPP and SNAP had agreed to make a united stand with a common platform in the coming elections and that their support in the state was growing. He reported also that there was a possibility of some demonstrations being staged in Kuching that very day. Indeed, these were already being planned.

“Leaflets denouncing Ningkan with allegations that SNAP and the communists in SUPP would ‘kill’ democracy in Sarawak were distributed throughout Kuching. A demonstration was organized at Pangkalan Batu across from the Astana, where hundreds assembled to proclaim their support for Tawi Sli and the Sarawak Alliance government. Although such assemblies were strictly illegal under the emergency regulations, the police had been informed of the benign intent and asked to stay out of it. As frosting to all this, some Berjasa supporters engaged in a big of vandalism later that evening breaking the windows of a few settlements in Kuching to reflect anti-English and anti-Ningkan sentiment. And reports on the tense security situation had been circulating for some days. The tension was real; the manifestation of it contrived. But the federal government had the justification it needed for fresh and radical action.”

And as Syed Kechik and his Sarawak counterparts plotted, Emergency was declared.

The accounts of the events leading to the Emergency declaration in Sarawak seem very akin to what is happening in Kelantan.

Is Syed Kechik’s account a figment of imagination of someone who has an over-inflated sense of importance about himself?

I have here with me a signed affidavit of one of the instigators of the tense atmosphere to justify the creation of Emergency in 1966 of the events of those days. He is Encik SENAWI BIN SULAIMAN, K. 661108, of Kampong Hilir, Kabong, Kalaka, Second Division, and who was SNAP Candidate for Kalaka State Constituency in the 1974 General Elections.

As in the case of the 1966 Emergency delcaration in Sarawak, the then Prime Minister and Deputy Prime Minister, Tunku Abdul Rahman and Tun Razak, probably did not know that an emergency situation was being deliberately engineered and promoted; does the Prime Minister Dato Hussein Onn and the Deputy Prime Minister, Dr. Mahathir Mohamed, know for sure that there is no purposeful exploitation of the Kelantan situation to justify an emergency being declared which benefits the UMNO at the expense of PAS?

Earlier, I mentioned the holding of public rallies and demonstrations with the knowledge, consent and even encouragement of the authorities in Kelantan. Are we seeing a repetition of the Sarawak emergency?

I have drawn the following conclusions about the Kelantan events that Mohamed Nasir had been encouraged by UMNO leaders to stand up against PAS, and the demonstrations and public rallies before and after the Motion of No Confidence, had been allowed and even encouraged by those in authority in Kelantan and Kuala Lumpur to create the conditions whereby NOC-rule can be imposed.

We in the DAP are not defenders of PAS, or Mohamed Nasir, or UMNO. We are concerned to see that the democratic basis of the Malaysian Constitution is not subverted or the integrity of the democratic system undermined by partisan political forces or considerations.

It is ironical that in the 1966 Case, in the words of Tun Razak in the Dewan Rakyat, Article 150 was invoked by the Government merely to see that real democracy is practised in Sarawak and accepted democratic practices are adhered to” that “the constitutional and political position in Sarawak is that the Chief Minister, who knows that he does not enjoy the confidence of the Council Negri, is duty-bound under democratic principles and conventions and in accordance with the spirit of the Constitution, not only to convene a meeting of Council Negeri to test members’ confidence in him but also to tender his resignation when he has lost their confidence.”

In 1977, in the Kelantan Case, Article 150 is invoked to allow the Mentri Besar, Mohd. Nasir, who had lost the confidence of the State Assembly, in a vote on Oct. 15, to continue as Mentri Besar although real democracy and accepted democratic practices” would require him to resign.

There is in fact no constitutional crisis or deadlock in Kelantan. Firstly, in a democratic society, power resides with the People, and the most democratic and sensible solution to the Political Crisis in Kelantan is to hold general elections in the State for the People to decide to whom they want to give the new mandate to govern.

I have no doubt that a pronounced police and security presence in Kelantan would be able to ensure a peaceful and trouble-free general elections. If PAS, UMNO and Datuk Mohd. Nasir have all along acted in the best interest of the people of Kelantan, then they should have no serious objections to solve the Political Crisis in the most democratic manner possible by the holding of general elections.

In fact, this can be done straightaway, and Kelantan State Assembly dissolved under Clause XVI (6) of the Kelantan Constitution which provides:

“If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Highness dissolves the Legislative Assembly, he shall tender the resignation of the State Executive Council,”

The Kelantan State Assembly can be dissolved either by the Regent acceding to the request of Mohamed Nasir for dissolution, or by the 21 PAS State Assembly men resigning en bloc together with UMNO Assemblymen to cause general elections to be held.

Alternatively, as PAS commands a majority in the State Assembly, it should be allowed to form a government. The constitutional solution has not been exhausted, and there is therefore no moral or constitutional justification for the imposition of NOC rule in Kelantan.

It has been said that NOC rule is urgent and necessary to allow normal business of government to proceed. But this can very well be done by the appointment of a Mentri Besar from the majority party in the Kelantan State Assembly.

Whatever the political differences, the State Constitution or Federal Constitution as the basic legal document of the land, should be respected and adhered to, both in words and spirit, for if it is seen that the Constitution of the Land could be bent or undermined through unconstitutional and irregular practices, then the final losers will be the Constitution and our system of constitutional government.

Indeed, the question that has arisen again and again in Malaysia is: “Does the Constitution govern the conduct of the ruling party, or does the ruling party govern the conduct of the Constitution.”

It is important for Members of Parliament and the Government to realise that parliamentary democracy depends for its success, in fact its survival and continuance, on a certain moderation in party warfare. Majorities must not exploit their advantage so far as to reach the point at which a large minority would resist than obey, and parties must not be more anxious to get power or more power rather than to preserve the spirit of a democratic constitution.

Just as earlier, I have mentioned about the Sarawak emergency background, which clearly establish that in 1966, the proclamation of emergency and invocation of Article 150 was in fraudem legis in that it was made, not to deal with a grave emergency whereby the security or economic life of Sarawak was threatened, but for the purpose of removing Stephen Kalong Ningkan from his lawful position as Chief Minister; the question is whether the proclamation of emergency today and the invocation of Article 150 to impose NOC-type of rule in Kelantan is also in fraudem legis not to deal with a grave emergency whereby the security or economic life of Kelantan was threatened, but for the purpose of enabling Kelantan UMNO to take advantage of the political conditions in Kelantan whereby it might, for the first time since Independence, form the government in Kelantan.

This Bill this evening is in fact the most Draconian measure that has ever been taken against a State. In the case of Sarawak, in 1966, at least certain constitutional forms were observed in forcing the convening of the Legislative Assembly where a motion of no confidence was passed. In the case of Kelantan, it is a direct Central Governmental take-over, depriving the Mentri Besar, the Executive Council and the State Assembly of their powers.

It is such draconian measures which pose greater threats to the continued survival of parliamentary democracy, than any other challenges or threats, including threats posed by the Malayan Communist Party. For such draconian, undemocratic measures subvert the faith of Malaysians in the democratic basis of the Malaysian Constitution, and the easy resort of the ruling party to emergency powers to further their partisan political interests.

The Bill today has again brought into open the future of democracy in Malaysia. It is none other than the Deputy Prime Minister, Dr. Mahathir Mohamed, who in one article said that the problems of democracy in Malaysia are brought about by two very important factors. The first is the failure of the people, from the top leaders to the masses, to understand democracy. The second is the deep cleavage between the two evenly matched racial groups which dominate the country the Malays and Chinese.

The present Kelantan crisis is solely the result of the first factor: the failure of the top leaders, including the Deputy Prime Minister, to understand democracy.

The Bill will set back the task of democratic nation-building. It will undermine the democratic forces in the land, and strengthen those anti-democratic forces on one hand, the communist, and on the other, the advocates of one-party rule or military dictatorship, the favourite solutions of feudalists.

(Speech by Ketua Pembangkang and DAP member of Parliament for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on 8th November, 1978 on the Bill to enable the Federal Government to take over the administration of the Kelantan State Government)