Extracts of Pepper presented by Parliamentary Opposition Leader, DAP Secretary-General and MP for Petaling, Lim Kit Siang, at the Malaysian National Textile Workers’ Leadership Seminar jointly organized by the TWARO and AAFLI at the NUBE Training Centre, Port Dickson on 17.9.81 on ‘Malaysian Constitution.”
Calls for the establishment of a Constitution Review Commission in conjunction with the Silver Jubilee of the Malaysian Constitution to review how the Constitution had adhered and advanced its basic principles in the last 25 years.
By next year, the Merdeka Constitution of 1957 would be marking its Silver Jubilee of 25 years, and it would be an apt occasion for a national review of the workings of the Constitution, to ascertain whether it had been able to adhere and advance its principles and objectives, or had deviated from its fundamental purpose.
The Federal Constitution was brought into being in 1957 based on certain fundamental principles. One of these was the creation of Malaysia as a parliamentary democracy based on the principle of parliamentary supremacy.
The workings of the Constitution in the last two decade and a half have seen the constant erosion o the principle of Parliamentary Sovereignty to the extent where the Executive has successfully usurped the powers of parliamentary supremacy, rendering Parliament as a mere appendage or Parliament.
In fact, some Parliamentarians have become so mentally and psychologically conditioned by the principle of Executive supremacy that recently we have the Chairman of the Parliamentary Public Accounts Committee, Datuk Lee Boon Peng, declaring that the PAC would present its report to the Prime Minister, until he was corrected and reminded that the PAC is a creature of Parliament and must report to Parliament! Subservience to the Executive has become a second self for many Parliamentarians.
A Constitutional Review of the relationship between the Legislature, the Executive and the Judiciary, which have been gravely upset by a series of Executive actions, is urgently needed to redress the imbalances of power the three branches of constitutional power.
In recent years, the Executive’s appetite for power have increased, and the growing concentration power of the Executive has been at the expense not only of Parliament, but also of the Judiciary.
In the Societies Amendment Act passed by Parliament in April this year, for instance, there were four separate provisions whereby the jurisdiction of the Judiciary was ousted, rendering the powers of the Executive, in the person of the Minister, unchallengeable in the Courts of law. Early in 1980,a major constitutional amendment was made whereby the Courts were specifically ousted from inquiring into the validity or Proclamations of Emergency.
Since Merdeka, the Federal Constitution has been amended by over 25 times, in easily some 1,500 different parts. Each time the Federal Constitution was amended, even less powers are left with Parliament, and greater inroads are made into the constitutionally-sanctioned human and civic rights of liberty of the person, freedom of speech, assembly and association, etc.
Another fundamental principle of the Merdeka Constitution of 1957 was the building of a free, democratic society where the pre-conditions are the human rights and civic liberties in Part II of the Constitution on Fundamental Liberties.
But almost every fundamental liberty have been qualified out of real meaning and content. For instance ,Article 5 on Liberty of the person have been nullified by the Internal Security Act powers of detaining a person without trial indefinitely without having to produce him in an open trial. The ISA had been used not only against communists, but also politicians and trade unionists, youth leaders and peasant spokesmen who have nothing whatsoever to do with the communist struggle of armed overthrow of the elected government.
Article 10 on freedom of speech, assembly and association suffered serious blows with the amendments to the Trade Union Ordinance and the Societies ACT. Freedom of speech is nullified by the ban of public rallies to serve the interest of the ruling parties, and also by the firm control of the mass media exercised by the Government.
The cornerstone of parliamentary democracy, the principle of one-man one –vote, has suffered repeated assault. Under the original Merdeka Constitution of 1957, it was provided that the Elections Commission should be a completely independent body like the Judiciary. However, as the Elections Commission Chairman, Datuk Mustapha Albakri ran the Elections Commission as a completely independent body as provided in the Constitution, unbeholden to any political party or political leader, he was removed and the Elections Commission’s independent and final powers on questions of delimitation of electoral constituencies taken away.
In the 1957 Merdeka Constitution, it was provided that in drawing up constituencies, there shall not be more than a difference by more than 15 per cent in the number of electors of any constituency to the electoral quota.
This 15% difference was not satisfactory to the Alliance Party, and in 1962, the Constitution was amended to provide that there could be a 100% difference with the national average.
This again proved inadequate, and in 1973 this limitation was removed completely, and now under the present Constitution, the sky’s the limit as far as the difference between one constituency and another with regard to the total electorate.
Recently, there has developed a new pernicious practice of nullifying the guarantees and provision sin the Federal Constitution not by a two-thirds amendment I Parliament, but by back-door administrative action. The foreign wives issue is the best example.
Under the original Merdeka Constitution of 1957, a woman who is married to a citizen is entitled to be registered as a citizen. In 1962 the Constitution was amended whereby more stringent provision was made to eliminate the possibility of acquisition of citizenship by a formal marriage of convenience. The new qualification include: (i) that she had resided continuosly in the Federation for a period of not less than two years immediately preceding the date of the application; (ii) that she intends to reside permanently therein;
Last year, this provision was further amended, not by Parliamentary two-thirds majority, but by pure administrative decision, that before an foreign wife could stay permanently in Malaysia to start the ‘two year’ residence qualification in the 1962 amendment, the foreign wife must have been married to the Malaysian for five years! Thus, with one stroke of the administrative pen, a two-year qualification period became seven years!
This is not the only instance of back-door administrative nullification of constitutional rights and provisions. Such illegal administrative action to nullify constitutional provisions is becoming more and more frequent.
These encroachments on the various fundamental principles and purpose on which the original Merdeka Constitution was founded make it all the more important that on the occasion of the 25th anniversary of the Merdeka Constitution, it should be reviewed and recommendations made by a high-powered Commission as to how the country can return to its original purpose where deviations had taken place.
I call on the Prime Minister, Dr. Mahathir Mohamed, to establish such a Constitution Review Commission, comprising eminent jurists and political leaders to conduct a wide-ranging and thoroughgoing review of the Malaysian Constitution after 25 years of operation, with public hearings from all Malaysians interested and concerned about constitutional developments, so that the fundamental principles, premises and purposes of Malaysian nation building could be upheld and pursued.
In this connection, on the forthcoming Silver Jubilee of the Merdeka Constitution, I call on all organizations and societies in the country to initiate study and discussion of the Malaysian constitution, the rights and principles embedded in it, and whether the Malaysian Constitution is securing the respect it should enjoy among Malaysians.