The Final Usurpation of Powers

(Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Petaling, Lim Kit Siang, when speaking in the Dewan Rakyat on Friday, 10th April 1981 on the Constitution (Amendment) Bill 1981)

The 1981 Constitution Amendments mark the final usurpation of the powers of the Legislature and the Judiciary where armed with the new emergency powers, the executive could legally abolish both Parliament and the Judiciary

Constitutional developments in Malaysia since Merdeka in 1957 marks the progressive usurpation of the powers of the Legislature and the Judiciary by the Executive, gravely upsetting the doctrine of the Separation of Powers and making a mockery of the concept of the Rule of Law, where the personal rights of a citizen, in particular fundamental rights of personal liberty, freedom of speech, assembly, association and belief, are protected by the Judiciary against arbitrary government.

With the present amendments to the Constitution, Malaysia has reached a stage where the Executive can legally abolish both Parliament and Judiciary. We have also reached the stage where the Judiciary is excluded from protecting the citizen from arbitrary government encroaching on the fundamental liberties of the people, through the multiplication of non-justiciable laws, or laws which could not be challenged in a court of law. We have therefore come perilously close to destroying the doctrine of separation of powers, the Rule of Law, designed to ensure that Malaysians live under a government of laws and not of men.

The proposed amendment to Article 150 will arm the Government with complete dictatorial powers, and has completely deviated from the original intentions of the Fathers of the Malaysian Constitution.

The principle of Emergency Proclamations and Powers laid down by the Reid Constitutional Commission 1956 was that “the occasions on which, and so far as possible the extent to which, such powers can be used should be limited and defined.”

Conscious of the doctrine of Separation of Powers and the dangers of unfettered and undefined Emergency powers, the Fathers of the Merdeka Constitution provided a definite life-span for emergency Proclamations and emergency powers unless renewed by Parliament.

Thus, Article 150(3) of the Merdeka Constitution 1957 states:

“3. A Proclamation of Emergency and any ordinance promulgated under Clause (2) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to be in force –

(a) a Proclamation at the expiration of a period of two months beginning with the date on which it was issued;

(b) an Ordinance at the expiration of a period of fifteen days beginning with the date on which both Houses are first sitting,

unless, before the expiration of that period, it has been approved by a resolution of each House of Parliament.”

But this two-month life span for a Proclamation of Emergency unless approved by Parliament, which required Parliament to address its mind to the continued justification of the Proclamation and the ordinances, was amended by Act 10 of 1960 to allow Proclamations of Emergency to last for eternity – as our Proclamations of Emergency seem to so.

In fact, Malaysia is presently in a state of permanent Emergency, where four Proclamations of Emergency are all valid, namely:

  1. The Proclamation of Emergency dated 3rd September 1964;(Indonesian Confrontation)
  2. The Proclamation of Emergency dated 14th Sept. 1966, applicable only to Sarawak; (to overthrow Chief Minister Stephen Kalong Ningkan)
  3. The Proclamation of Emergency dated 15th May 1969 (May 13, 1969), and
  4. The Proclamation of Emergency dated 8th November 1977, (to overthrow PAS government in Kelantan.)

On June 28, 1979, I moved a motion asking the House to annul all the four proclamations of emergency as the conditions giving rise to their Proclamations have ceased to exist, but the Government vehemently opposed their annulment.

This provides for the perpetual nature of the Proclamations of Emergency, however irrelevant or different the conditions which originally caused the Proclamation to be promulgated, as the amended Article 150 (3) of the Constitution provides that unless revoked by the Government or annulled by both Houses of Parliament, the Proclamation continues indefinitely.

Two years ago, the Constitution was further amended to make Proclamations of Emergency unchallengeable in Court of Law, even through a proclamation may have been issued mala fide, or the conditions for which a Proclamation may have been issued mala fide, or the conditions for which a Proclamation of Emergency was promulgated to deal with had already ceased to exist, as is the case with all the four Emergency Proclamation still in force.

Today, we are asked to confer even greater powers. Whereas now a Proclamation of Emergency could only be promulgated “if the Yang di-Pertuan Agong s satisfied that a grave emergency exist whereby the security or economic life of the Federation or any part thereof is threatened”, the new Article 150 (1) and (2) would empower the Yang di-Pertuan Agong to issue a Proclamation of Emergency before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.

And this anticipation of imminent danger is not challengeable in a Court of Law on any grounds, regardless whether the decision was taken male fide of for political motives as happened in Sarawak in 1966 and in Kelantan in 1977.

Before I proceed, further, in view of the established mendacity of Barisan backbenchers to twist and distort, when we refer to the Yang di-Pertuan Agung in this context and debate, we are not referring to him personally, but to the Cabinet, because under Article 40(1) of the Constitution, the Yang di-Pertuan Agong could only act in accordance with the advice of the Cabinet.

The amended Article 150 goes on to provide that different Proclamations of Emergency may be issued on different grounds or in different circumstances, and whether or not there is or there are Proclamations in operation. It is also provided that the Yang di-Pertuan Agong has the power to promulgate ordinances while a Proclamation of Emergency is in operation when both House of Parliament are not sitting concurrently.

If ‘concurrently’ is taken to mean that both Houses of Parliament sitting at the same time whether together or separately, then it happens only once a year during the official opening of Parliament when the Yang di-Pertuan Agong delivers the Royal Address. This would mean that for all practical purposes, after the present batch of constitutional amendments, the Government could issue Ordinances even through Parliament could be summoned to meet at the shortest notice.

This is exactly what was declared unconstitutional by the Privy Council in the case, Teh Cheng Poh alias Chai Meh The Public Prosecutor(1979) which ruled:

“The power to promulgate Ordinances having the force of law is expressed to be exercisable only until both Houses of parliament are sitting. It lapses as soon as Parliament sits…… Once Parliament has sat after the Proclamation, the power to legislate by Ordinance under Article 150 (2) does not revive even during periods when Parliament is not sitting, unless and until a new Proclamation of Emergency is issued by the Yang di-Pertuan Agong”.

After brooding over the Teh Cheng Poh case, the Government has now come out with an amendment which will allow it to continue to make Ordinances and Regulations introducing entirely new legal principles, like the infamous Security Cases Regulations, without having to seek parliamentary approval.

We will then have a parallel system of government, where on the one hand, through emergency powers, new institutions and new legal principles are introduced; while on the other hand, machinery of government is allowed to co-exist and even to serve unparliamentary, authoritarian laws – like the Judiciary being required to apply draconian laws originating from emergency legislation without reference to Parliament, which are unexceptional in terms of strict legality but clearly reflect an authoritarian police state, and offends the Rule of Law.

Instead of limiting and defining emergency powers, the Barisan Nasional Government is taking out all the limits and constraints. Parliament will be giving the Executive the biggest blank-cheque in Malaysia history, as the Executive will be able to invoke Article 150 to proclaim an emergency, regardless of whether conditions justify such proclamation, or to use one proclamation for entirely different purposes, conditions and situations, which are all completely above challenges in a court of law.

In fact, under new Clause 2C of the amended Article 150 which is one of those ‘monstrosities’ which the Barisan Nasional government is fond of arming itself with to enable it to exercise unlimited untrammeled powers, Parliament and the Judiciary could both be abolished, by way of an Ordinance!

Thus, new Clause 2C reads:

“An Ordinance promulgated under Clause 2(b) – (i.e. when both Houses of Parliament are not sitting concurrently), shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate Ordinances under Clause (2B) may be exercised in relation to any matter with respect to which Parliament has power to make laws, regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either House of Parliament.”

Under Article 150(5), while a Proclamation of Emergency is in force, Parliament may make laws contrary to any Constitutional provisions; including those repugnant to fundamental liberties entrenched in the Constitution.

Thus, the Executive, by way of Ordinances, would be able under the New Section 2C to make ordinances and regulations contrary to Constitutional provisions, including the abolition of Parliament and the Judiciary.

In fact, in view of the provision of Section 2C that “the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause 2B may be exercised in relation to any matter with respect to which Parliament has power to make laws, regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either Houses of Parliament”, the Executive here is even more powerful than Parliament, for it can disregard Parliament’s need to secure two-third Parliamentary majority to amend the Constitution, or the special procedures to be complied with to effect constitutional amendment affecting special rights, to proceed by way of Ordinances to effect drastic changes to the Constitution – or probably even to suspend or abolish the Constitution.

There is completely no check on such absolute emergency powers as the New Section 8 of Article 150, provides that the Yang di-Pertuan Agong’s satisfaction to issue a proclamation or to make ordinances under Section 2B “shall be final and conclusive and shall not be challenged or called in question in any court on any ground.”

This exclusive of Judicial review is further reinforced by another section which provides that “no court shall have jurisdiction to entertain or determine any application, question or proceeding in whatever form, or any ground, regard the validity of a Proclamation of Emergency, the continued operation of such proclamation, any ordinance or the continuation in force of any such ordinance.

Thus, we have laid ourselves open to a situation where by Emergency decree, the Executive can abolish Parliament arrogating to itself all law-making powers; and also abolish the Judiciary, turning judicial duties to departmental officers, as is the case with the Societies Amendment Bill vesting the Registrar of Societies with the powers of interpreting the Constitution, and enforcing such interpretation.

Such powers which the Government Executive is asking is completely inimical to the elementary concepts of a democratic society and government, where the Rule of Law prevails.

The principle of the Rule of Law can only have meaning if restrictions are imposed on the assumption and exercise of emergency powers. There should be a system of judicial control over the assumption and exercise of emergency powers by the Executive with a view to:

  1. determine whether the circumstances have arisen and the conditions have been fulfilled under which the powers may be exercised;
  2. limiting the extent to which such emergency powers may be exercised in derogation of the fundamental rights of the individual;
  3. giving the courts a supervisory jurisdiction to ensure that emergency powers are used only for the specific purpose for which they were granted, and that they are not exceeded.

In arming itself with such absolute, dictatorial powers subject to no checks or reviews whatsoever, the people in Malaysia and the world outside cannot but help conclude that either the Government is preparing the basis for a dictatorship in the foreseeable future, or the Government intelligence foretell national chaos, anarchy and instability arising either out of internal or international forces.

If it is the latter, then Parliament and the rakyat have a right a to know that what are such intelligence to justify the Executive arming itself with such dictatorial powers. Otherwise, one can only conclude the former, namely the preparation for a dictatorship and totalitarian rule.

Threat to the Fundamental Right to Property (Article 13)

The Constitutional Amendment Bill also seeks to amend Article 149 which empowers the Government to disregard the fundamental right to property in Article 12 of the Malaysian Constitution which states:

  1. No person shall be deprived of property save in accordance with law.
  2. No law shall provide for the compulsory acquisition or use of property without adequate compensation.

Under the amendment, the Government has the power under Article 149 to make laws not only inconsistent with Article 5 (Liberty of the Person), Article 9 (Prohibition of Banishment and Freedom of Movement), or Article 10 (Freedom of Speech, assembly and association), but also Article 13 (Right to Property).

In this speech when moving the Bill last night, the Deputy Prime Minister, Dr. Mahathir Mohamed, said that the government needed such powers to take away all property used for subversive activities that threaten the security of the nation.

However, Article 149 refers to so many different types of circumstances where special legislation is required, for instance, to stop organised violence against persons or property; the exciting of disaffection against the Government; the promoting of all-will and hostility between different races or other classes of the population likely to cause violence; the procuring of the alteration, otherwise than by lawful means, of anything by law established; activities prejudicial to the security of the country, that the enactment of legislation inconsistent with the right to property is likely to be open to considerable abuse.

In fact, even now, Article 13 on the Right to Property has come under attack, not in the form of an overt constitutional amendment, but by way of back-door administrative fiat, like the case of the Bintulu Development Authority regulation that before land in Bintulu could be considered by the BDA for conversion of title and subdivision prior to development, a development company must be formed where 50 per cent of the shares should be held by Bumiputras.

This is a blatant attack on the constitutional rights of Malaysians with regard to right to property, but it is deplorable that up till now the Federal Government has done nothing to check such unconstitutional actions and excesses. It cannot but raise the question whether constitutional liberties and rights are not just empty words.

Even the recent UMBC affair is not unrelated to the Right to Property of Article 13. When the UMNO Youth shouts, the MCA shivers, and the well-advanced plan of its satellite organisation, the Multi-Purpose Holding to acquired majority control of the UMNC is abandoned. But when the MCA Youth shouts, they could only frighten the MIC!

Because of the far-reaching consequences of the amendments to Article 149 and 150, which will pave the way to a dictatorship, the complete usurpation of the powers of the Judiciary and the Legislature by the Executive, the end of the Rule of Law, the DAP oppose in the strongest possible terms the current constitutional amendments.

There is no need for the rush the Government is going about in amending Article 149 and 150. I call on the Government to withdraw the amendments to these two Articles, and to enable a deeper public debate and discussion as to whether such amendments are necessary, whether warranted by Malaysian conditions, and whether even more important, they are inimical to the healthy growth of Malaysia’s fragile democratic plant. This is why although we support a few of the amendments, we cannot vote for the Constitutional Amendment Bill because Articles 149 and 150 over-shadow the rest.

Conflict of Interest of Members of Parliament and State Assemblymen should be prevented by a regulation that no MP or State Assemblymen whether directly or through the spouse or immediate family member, could apply for government land or favours to prevent conflict of interest of their political duties and personal interests.

For instance, we support the proposal that the Speaker of the Dewan Rakyat, the Deputy Speaker, the President and Deputy President of the Dewan Negara and the Speakers of the State Legislative Assemblies should not be involved in any business activities, whether as a member of any board of directs or board of management, or engages in the affairs or business of any corporate, commercial, industrial undertaking.

This is to ensure that there should be no conflict of interest between political and public duties and the personal interests of these who have been entrusted with high public and political office.

The DAP feels however that more action must be taken to ensure that there should be no conflict or interest not only by the personages provided in the Amendment Bill, but also of all MPs and State Assemblymen, so as not degrade their political elective office and trust by making use of their positions, whether directly or through their spouse or immediate family member, to acquire government land or other government favours.

The DAP is not only opposed to Barisan Nasional MPs and State Assemblymen making use of their political positions to get government and public interests like land, permits, licences, creating a conflict of interest, we are equally opposed to Opposition, especially DAP, MPs and State Assemblymen making use of their position to get government land or other government favours whether directly, or through spouse or immediate family member.

We know that it is not impossible for DAP MPs or State Assemblymen to get land for housing scheme, for instance, involving sat 30 or 40 acres which would easily worth $2 or $3 million in projects – but there would be a price, namely the destruction of the DAP, from within if possible, if not from without.

We are not worried by such party traitors for we believe the people’s eyes are very clear, and they would be able to judge for themselves such traitorous activities, even if by the great traitor in DAP history.

But I am more concerned about the principle that regardless of whether an MP or SA is from Barisan or Opposition, there should be no conflict of interest between public duty and personal interest, and not achieve this, I suggest:

Firstly a regulation that an MP or State Assemblymen, regardless of whatever party, is disqualifies from applying for government land or other favours, whether directly, or through the spouse or immediate family; and

Secondly, the annual declaration of assets by each MP and SA and the spouse and immediately family member publicly, so that they could be subject to public scrutiny as to whether there has been any conflict of interest in each case.

To enhance the image of Parliament, it is important that MPs and State Assemblymen should gain the respect of the people for their political and personal integrity and honestly, and not behave as if they are political cattle, which could be auctioned to the highest bidder.

To component the image of Parliament, it is important that MPs and state assemblymen should gain the respect of the people for their political and personal integrity and honesty, and not behave as if they are political cattle, which would be auctioned to the highest bidder.

Two component parties of the Barisan recently vied with each other for such political cattle, and the party with the mose financial resources has got more success,

Such goings-on cannot enhance the image of Parliament. If we are really interested in enhancing the image of Parliament, then the Constitution should be amended to provide that where an Mp or State Assemblymen is no more member of the party on whose ticket he got elected, whether this is because he resigned or sacked for anti-party and traitorous activities, then the seat should be vacated for a by-election to be held.

There have been instances of those who have sword oath in waiting that they would resign their seats if they are no more in the party on whose ticket they got elected, but who are not men of political and personal integrity and honesty, who could deny and violate suffer a decisive rejection by the electorate if they dare to go back to their constituency for a by-election.

I will not waste my time on such people, who have such a low opinion of their own oaths, expect to say that I am not surprised that such people are exhibiting signs of madness. And when a mad dog goes into a barking frenzy, I will leave it alone.

Elections Commission can only be enhanced by having a system of clean, honest general elections

I support the amendment to disqualify the Elections Commission Chairman from taking part in business activities, but the only way to enhance the image of the Election Commission as an independence body is to ensure that our elections in Malaysia are clean, fair, honest, and not an exercise in mass corruption and money-power.

In the recent Sabah general elections, it has been estimated that Parti Berjaya spends an average of $1 million to $2 million in each constituency, spending very much more in Elopura in Sandakan. Even the Bapa Merdeka, Tunku Abdul Rahman, in his column ‘As I see it’ in Star on March 30, said:

“The Sabah election must go on record as being the most expensive election held in recent times. It has been reported that an astounding sum of money was spent, including $7 million for holding the centenary celebrations.”

Tunku Abdul Rahman estimates that an average of about $10,000 was spent on each of the 324,900 registered voters in the recent Sabah general elections, which will work out to the staggering figure of $3,249 million.

The election laws impose a limit of $15,000 for election expenditures by each State Assembly candidate, and clearly the election laws have been flouted so blatantly that if the election laws had been stringently imposed, everyone of the Berjaya Ministers and State Assemblyman, including the Chief Minister, Datuk Harris Salleh, would have been disqualified for breach of election offence.

Thus, the disqualifying of the Election Commission Chairman from holding business activities alone cannot enhance the image of the Elections Commission.

To salvage the very tattered image of the Elections Commission, I call on the Government to accept the proposal by Tunku Abdul Rahman that a commission be appointed to look into the infringement of the election offence laws, as otherwise elections in the true sense of the word cannot be legally carried out.

State Assembly Speakers should be fair and impartial in carrying out the duties of their office

The amendment disqualifying State Assembly speakers from business involvements is aimed too at enhancing the image of the respective State Assemblies.

However, the image of the State Assemblies cann never be enhanced unless the Speakers are fair and impartial in the carrying out of their duties, and state governments do not use their brute majority to force through spurious interpretations of the State Constitution.

In Malacca State Assembly, there is an attempt to oust me by declaring my Kubu seat vacant, on the ground that I had contravened Article 17 of the Malacca State Constitution.

Article 17 of the Malacca State Constitution states that the Malacca State Assembly may declare a seat vacant if an Assemblyman is absent from the meeting of the Assembly for a period of six months without the permission of the Assembly.

This is comparable to Article 52 of the Federal Constitution which states:

“If a member of either House of Parliament is without the leave of the House absent from every sitting of the House for a period of six months the House may declare his seat vacant.”

The language is very clean, and could be open to no other interpretation. I was present at the Malacca State Assembly meeting on April 8 and 9, 1980, when the Assembly adjourned till Sept. 23. I did not attend the one-hour State Assembly meeting on Sept. 23 as I was overseas in Australia, but I attend the subsequent Malacca State Assembly meeting of Nov. 27.

It is now argued that I had been absent for six months from April 10 to Nov. 26, although there was no State Assembly meeting between April 10 and Sept. 22.

When With such clear languages, there are those in power who still want to give a spurious interpretation to it for their own political interests, I shudder to think the abuse of power that will arise with such vague and ambiguous language granting such untrammeled powers to the Executive in the present Constitution Amendment Bill and the Societies Amendment Bill only two days ago.

Let me declare here that I am not afraid to face a by-election in Kubu, unlike others who yell alot but dare not return to the electorate.

But it will do the country considerable damage to for the people inside and outside the country to be confirmed that the government cannot be trusted with exercising responsibilities of office and power fairly.

I understand from one Chinese newspaper report that the Speaker, Tan Sri Syed Nasir, when he visited Malacca recently, had a meeting with the Malacca State Assembly Privileges Committee on my case. I do not know whether this is true.

But if the Barisan Nasional want to be unfair and arbitrary, let the people decide. Let the Barisan Nasional explain why I have been picked out for victimisation, when several EXCO members had been absent from the Malacca State Assembly meeting of Sept. 23 without leave of the Assembly – as unlike in Parliament, the Assembly speaker was never authorised to act on behalf of the House on questions of granting leave.

In fact, if under Article 17 of the Malacca State Constitution, the Speaker could grant leave without delegation of powers by the Assembly, then the Speaker himself could declare the Kubu seat vacant without the need for any Assembly decision or meeting.

Mr. Speaker, Sir, we have a lovely Malaysian country, with vast rich natural resources, especially human talents. Let us apply our minds to build national unity and progress, and not to entrench political powers of the sake of power even if it means the destruction of democracy. I fervently urge the Government to withdraw the present Constitutional Amendment Bill, if not totally, at least Article 149 and 150 amendments.