(Speech by Parliamentary Opposition Leader, DAP Secretary- General and MP for Petaling and Assemblyman for Kubu, Lim Kit Siang, in the Malacca State Assembly on Tuesday, 29th Sept. 1981 on the motion to accept the Report of the Committee of Privileges that he had been absent without leave from the Assembly for six months)
DAP rejects the Report of the Committee of Privileges as being biased and prejudiced, and drafted to support a predetermined conclusion in utter disregard of general parliamentary practice and the Malacca Constitution
The house is asked to accept the Report of the Committee of Privileges tabled on 28th April 1981 with the finding that as I was absent from the State Assembly meeting on 23rd Sept. 1980, under Article 17 of the Malacca Constitution, I had been “without the leave of the Assembly absent from every sitting thereof for a period of six month” and that my Assembly seat of Kubu may be declared vacant.
I reject the Report of the Committee of Privileges. I reject it not because I am personally involve or because I am afraid of a by-election, but because I am shocked by the influence of the personal bias and prejudice of the members on the Report, who were more interested in drafting a report to support the pre-determined conclusion of the members, in utter disregard of general parliamentary practice and the Malacca Constitution.
The members, and signatories to the unanimous Report, of the Committee of Privileges are the Chairman, Mohd. Adib bin Haji Mohd. Adam, (Chief Minister), Exco Members Ahmad Nordin bin Mohd. Amin (Tanjong Minyak) Lim Soo Kiang (Batang Melaka), Md. Di Bin Abd. Ghani (Ayer Molek) and Chan Teck Chan (Tranquerah).
Bias and Prejudice
All the five members are not qualified to sit in judgment over this issue because they have individually their separate bias, prejudice, personal interest and pre-conceived views on the matter well before their meetings.
Ahmad Nordin bin Mohd. Amin, for instance, the only lawyer on the Committee of Privileges, who prides himself as the Constitutional expert in the Malacca State Government, does not seem to be aware of the time-honoured rules of natural justice that anyone sitting in judgment on others should be disinterested, impartial and have no personal bias or prejudice or pre-conceived views on the matters he had been entrusted to give his judgment.
Anyone who have pre-conceived views and personal bias, prejudice or personal interest on the matter he is to give judgment should disqualify himself, so that justice must not only be done but seen to be done.
Ahmad Nordin did not sit on the Committee of Privileges with an open independent mind, for his views were already made up even before the reference of the matter to the Committee, and his views- which I would show in the course of the debate to be wrong and misconceived – were so unreasonable as to qualify to be described as ‘rabid’ and ‘diseased’.
It was Ahmad Nordin who, on November 26, 1981, moved the motion in this House that the question whether I had been absent without leave “from every sitting for a period of six months” for not attending the one-hour sitting of the Assembly on 23rd Sept. 1980, should be referred to the Committee of Privileges.
But when Ahmad Nordin introduced the motion, it was obvious that the reference to the Privileges Committee was going to be a mere formality, for he made it very clear that I had infringed Article 17 of the Malacca Constitution in being absent from the Assembly without leave for six months. In fact, in several parts of his speech, he even went to the extent of declaring that I had ‘betrayed’ the Malacca Constitution, and that I had committed a grave sin, which was unforgivable.
Thus, in his speech on Nov. 26, mad Nordin said “kesalahan yang dibuat oleh Ahli Yang Berhomat dari Kawasan Kubu itu dibawah Article 17 Perlembangaan Negeri Melaka mestilah ditakrif sebagai telah melakukan satu dosa yang besar yakni seperti dikatakan orang ‘tiada maaf bagimu’.”
In another part, Ahmad Nordin even excelled his usual hyperbolic self by declaring that I had committed “a fundamental breach of the Constitution o the State of Malacca.”
With such open and palpable bias and prejudice, how can Ahmad Nordin approach the matters referred to the Privileges Committee with an open mind and impartiality required of this who are to pass judgments on other people? As the Constitutional expert of the Malacca State Government, I would expect Ahmad Nordin to disqualify himself, but no, his constitutional, I would expect Ahmad Nordin to disqualify himself, but no, his constitutional knowledge does not include knowledge of the Rules of Natural Justice.
Another Exco Member on the Committee of Privileges, Lim Soo Kiang, has also shown his personal bias and prejudice on the matters in his seconding speech to Ahmad Nordin’s motion on Sept. 26, when he was virtually unable to control himself in demanding for my punishment!
TThe third and fourth member, namely Md. Di and Chan Teck Chan, have a personal interest in the outcome of the findings, for they had both been absent from the StateAssembly meeting without proper leave. I had contended in the House that if, by being absent from the one-hour State Assembly meeting on Sept.23, 1980, I am to be construct as having been absent from the Assembly without leave for a period of six months, then all the other Assembly Members and Exco Members who were also absent from the Sept. 23 meeting include Barisan Exco members Datuk Haji Abdul Aziz bin Haji Alias (Serkan) Abdul Razak bin Alias (Taboh Naning) Mohamed Jais (Sungei Baru) and Assemblyman Abd. Jalil bin Abd. Rahman (Kelemak).
None of them had ever been given leave by the Assembly. The Barisan argued that there is no need for the Assembly to grant leave, and that the Speaker’s leave is adequate. This is in open contradiction of Article 17 of the Malacca Constitution. This was an issue referred to the Privileges Committee. Surely, the rules of natural justice require that Assemblymen who are likely to be affected by such findings would disqualify themselves- and that includes all those who had been absent from the State Assembly without leave from the Assembly since general elections, like Mohd. Di and Chan Teck Chan.
The 31.25 acres Waton Saga
The Member for Tranquerah, Chan Teck Chan, is of course a special category by himself. During the Assembly debate on Nov. 26, 1980, when he was still inside the DAP though as a Barisan mole, he attacked the Barisan for its political motives in trying to force a by-election in Kubu, and declared inside and outside the Assembly, that he would never compromise with the Barisan to use its brute majority in the Assembly to misinterpret Article 17 of the Malacca Constitution.
But in this Report of the Committee of Privileges, we see the signature of Chan Teck Chan giving full support and agreement to the preserve interpretation of Article 17 by the Barisan and the Privileges Committee. The people of Malacca will not be surprised, however, for they have seen enough of his self-edited, self-produced, self-acted drama like burning of joss-sticks in temple, the so-called 97% support for his joining the MCA by the people of Malacca, and of course, the famous Waton Sdn. Bhd. And Malim Jaya 31.25 acres saga. This is of course an excellent opportunity for him to ‘use public occasions to personal revenge.’
Be that as it may, Chan Teck Chan’s personal interest, bias and prejudice, malice and venom, completely disqualify him from the Privileges Committee deliberations on the matters before the House.
This leaves us with only the Chairman, the Chief Minister, Adib Adam, who is similarly afflicted with pre-conceived views on the issue involved which he had made public in the newspapers. Having his own pre-conceived views to uphold, which were made public, Adib Adam did not have the impartiality and openness of the mind to sit in judgment on this matter.
This is why those who read the Report must get impression that it was written to tailor pre-determined views, where arguments are selectively marshaled to support such a predetermined conclusion, while facts and arguments which undermine it are abandoned.
The Report of the Committee of Privileges and its finding that I have been absent without leave of the Assembly for six months just because of my absence at an one-hour meeting, is a most shocking and disgraceful document.
As the self-acclaimed Constitutional expert in the Malacca State Government, and the only lawyer on the Committee of Privileges, Ahmad Nordin is chiefly responsible for fathering such a document, with all its perverted logic, unconstitutional nations and legal rojak!
Ahmad Nordin, who invented the notion of ‘fundamental breach of the Constitution’- must have got lost somewhere between the law of contract with its principle of fundamental breach of contract, and constitutional law.
I have never come across a case as flimsy and insupportable as the Report of the Committee of Privileges, which must shame any layman with common sense and the faculty of straight thinking.
Article 17 of the Malacca Constitution reads:
“17. If a member of the Legislative Assembly is without the leave of the Assembly absent from every sitting thereof for a period of six months the Assembly may declare his seat vacant.”
The facts of the case are very simple and straightforward. I attended the Malacca Assembly meeting on April 8 and 9, 1980, after which the Assembly adjourned. It nest met on Sept. 23 for one hour, which I did not attend as I was away in New Zealand to attend a conference of the Socialist International. I attended the next Malacca State Assembly meeting on Nov. 25-27.
Clearly, my absence from the Malacca Assembly first began on Sept. 23, as I could not be absent when the Malacca Assembly was in full recess from April 10 to Sept. 22. If the six months beginning from Sept. 23- the first day I became absent- I did not attend everyone of the Assembly sittings without leave of the Assembly, I would run afoul of the Malacca Constitution Article 17.
In fact the wording in Article 17 envisages the defaulting member being absent from more than one sitting, thus the words ‘absent from every sitting thereof”.
The Barisan members, however, are giving a most artificial and perverted interpretation to Article 17 by claiming that I had been absent from the Malacca Assembly from April 10 to Nov. 10, although the Malacca Assembly met for one hour only during this period on Sept. 23, and my first absence started from Sept. 23.
Ahmad Nordin had contended in this House last November that the words in he Malacca Constitution must be given their ordinary meaning, but he is guilty of rendering to the words in the Malacca Constitution a most extraordinary meaning and usage!
Of course, if the Barisan wants to use its brute Assembly majority to give any interpretation of the Constitution it fancies, it is at liberty to do so. But if it believes in the rule of law where there is no arbitrary abuse of power, especially in interpreting the Constitution, then it must produce a strong and convincing case. This the Committee of Privileges had failed to do. This also explains why the Barisan Government dare not refer Article 17 of the Malacca Constitution to the High Court for an interpretation.
The Committee of Privileges made no attempt to refer to other parliamentary practices. I had in fact drawn the attention of the Privileges Committee to Indian practices, as reported in the book, “Parliamentary Procedure in India” by a cleark of Lok Sahba, Inda A.R. Mukerjee, which states that in India:
“The House may declare a member’s seat vacant if he absents himself without leave of the House for more than sixty days. In computing the period of sixty days no account is taken of days during which the House is prorogued or adjourned for more than four consecutive days.”
In other words, apart from normal weekend recesses, plus public holidays joining the weekend recess, the period to be computed to determine absence without leave does not include periods when the House is in full recess- as is the case with the Malacca Assembly from April 10 to Sept. 22, 1980.
Again, the Privileges Committee was aware that I had contacted the Commonwealth Parliamentary Association Headquarters in London- as Malacca’s constitutional provisions and parliamentary practices are based on House of Commons and other Commonwealth practices- and the CPA officials had expressed amazement at an interpretation where a Member could be construed as having begun to be absent without leave when the House is in full recess. ‘Unheard of’, is their reaction from commonwealth parliamentary practices.
The Committee of Privileges had completely ignored and disregarded these precedents and practices as inimical to the pre-conceived and predetermined conclusion it is has decided to reach.
The Committee of Privileges said in its report that it had discussed the matter with the Speaker of Dewan Rakyat, Tan Sri Syed Nasir, giving the impression that its finding was the result of the views and opinions of Tan Sri Syed Nasir.
Let me state here that I had myself discussed the matter with Tan Sri Syed Nasir, who expressed shock that Article 17 could be interpreted in the way the Privileges Committee is doing. I had not mentioned this before, for I believe that if the views of the Speaker of Dewan Rakyat is to be sought and used officially, then the Speaker’s view must be in official form, forming part of the Committee of Privileges. In this way, the Syak Speaker’s opinion will not be used, without or without his knowledge and authority, to prop up the Committee’s weak case.
I suggest that the Committee of Privileges should write officially to the Speaker of Dewan Rakyat and ask for his official opinion, which should be formally presented to Assembly. If no, Otherwise, the Speaker of Dewan Rakyat should not be dragged into the Committee’s Report in any manner.
The Privileges Committee’s justification for finding that I had been absent without leave for six months was to tack along Article 19(1) of the Malacca Constitution, which reads:
“19. (1) The Yang di-Pertua Ngeri shall from time to time summon the Legislative Assembly and shall not allow six months to elapse between the last sitting in one session and the date appointed for the first sitting in the nest session.”
The ‘mad’ Constitutional Lawyer
The Privileges Committee argues that Article 19(1) means that if the Assembly does not meet within six months in one stretch, then it must be dissolved. (Para 6). Further, Articles 17 and 19(1) are illustrative of the spirit of the Constitution giving importance to the attendance of Members in every Assembly sitting expect with leave of the Assembly.
Frankly, I cannot understand the very confused and constitutional illogic of the Privileges Committee inspired by Ahmad Nordin. A special prize must be given to him for his ‘quirky originality’ without any foundation in constitutional law or legal reasoning. In the field of science, we have the term ‘the scientist’; the time has come for a similar appellation of ‘the mad constitutional lawyer’.
Firstly, if the intent of the Malacca Constitution is that every member must attend every sitting of the Assembly if not to violate the spirit of the constitution and commit a ‘fundamental breach’ of the Constitution, then Article 17 would be phrased differently. It would have provided that any Member who is absent from ‘any sitting’ without leave of Assembly would be disqualified- and not to permissive provision of Article 17.
Secondly, the Federal Constitution has a similar provision as Article 12 and 19(1) of the Malacca Constitution, and nobody had the ‘originality’ and ‘courage’ to suggest the type of interpretation advanced by the Privileges Committee.
Thus Article 52 of the Federal Constitution reads:
“52. 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.”
Article 55 (1) of the Federal Constitution reads:
“55. (1): The Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.”
By the logic of the Committee of Privileges, a MP who is absent for one sitting of Parliament would have gone against the ‘spirit’ of the Constitution, committed a fundamental breach of the Constitution. It is fortunate that the authors of the Committee of Privileges Report have no mandate to run rampant at the Parliamentary and Federal level, or even the Prime Minister the Deputy Prime Minister, and the entire Cabinet, would every now and then have to have their Parliamentary seats declared vacant, as none of them attend every sitting of Parliament.
The former clerk to Parliament, Ahmad bin Abdullah, had written a book on our Parliamentary practice with regard to the absence of Members without leave.
In his book, ‘Malaysian Parliament- Practice and Procedure’, p. 53, Ahmad Abdullah wrote:
“A member, if he so desires, is free to absent himself from the meetings of the House, but the Constitution has provided that – he must not be absent from any sitting of the House for a period of six months or move without leave of the House.”
Ahmad Nordin’s theory of ‘fundamental breach of the Constitution’ for absence without leave for a day is therefore ‘fundamental nonsense’. To be absent from sittings of the Assembly of Parliament, without leave, without exceeding a six-month period, is constitutionally proper, and implies no discourtesy, and even less so, involves no offence or breach.
Ahmad Nordin’s ‘fundamental nonsense’ is further reinforced by Article 17 of the Malacca Constitution which provides that even if a Member had been absent without leave for six months, the declaration of the vacancy of the seat is not automatic and mandatory. Article 17 provided that the seat ‘may’ be declared vacant, and not ‘shall’ be declared vacant.
Paragraph 6 of the Report is unsupported by law, constitution and political and parliamentary practices- especially the argument that the Malacca Assembly must be dissolved if it does not meet at least once every six months.
Such an Assembly would be doing something unconstitutional, as had happened in Malacca Assembly several times before, but how is a dissolution of the Assembly to take place? The Yang di-Pertua cannot dissolve the Assembly on his own initiative, but only “at the request” of the Chief Minister according to Article 7 of the Constitution.
Surely, a Chief Minister who is responsible for not calling State Assembly meetings as required by the Constitution at least once in six months is unlikely to advise the Yang di-Pertua Negeri to dissolve the Assembly.
For the information of the constitutional expert in the Malacca State Government, the Trengganu State Assembly once breached this constitutional provision that the Assembly should meet at least once in every six months.
The Patient Sultan
I refer to a Front Page Report in Straits Times of 20th Sept. 1961, headlined: “The Patient Sultan and PMIP – by the Tengku’:
“The Prime Minister, Tengku Abdul Rahman, today confirmed that the Sultan of Trengganu had complained to him about the inactivity of the Pan-Malaysian Islamic Party Government to the State.
“ This has led to a feeling of frustration throughout the state, especially among civil servants, the Tengku said.
“Unfortunately, the Prime Minister said, the Federation Government could not help the Sultan, the state orthe people. For one thing, there is no provision in the Federation Government whereby the State government can be suspended, the Tengku said.
‘It is a pity such a provision was overlooked at the time the Constitution was drafted’.”
This was after the Trengganu State Assembly had not met since Feb. 25, 1961, exceeding the constitutional six- month period.
Paragraph 7 of the Report of the Privileges Committee that it has become a convention for the Speaker to grant leave instead of the Assembly is another dangerous Constitutional idea, especially as Article 17 is very specific in referring to ‘leave of the Assembly’ and not ‘leave of the Speaker’. Although Ahamd Nordin argued in November last year that there must be a ‘strict legal interpretation’, it would appear that such ‘strict legal interpretation’ is also dependent on his whim and fancy.
For Ahmad Nordin to suggest that an illegal practice could be elevated to a ‘convention’ which would override a specific Constitutional provision is indeed a shocker of shockers.
As the State Assembly, unlike Parliament, had not adopted a motion to delegate the powers of granting leave from the Assembly to the Speaker, the present belief that the writing of a letter to the Speaker tantamounts to getting leave of absence is a complete misunderstanding of the Constitutional provisions- and not to negate and nullify them.
Constitutional conventions are not created by misunderstanding of the Constitution, but through the conscious creation and acceptance of political rules to facilitate the operation of constitutional provisions- and not negate and nullify them.
Furthermore, constitutional conventions must have the qualities of certainty and acceptance, and the fact that the Chief Minister admitted in the November meeting of the ASSEMBL THAT this matter be considered by the Privileges Committee show that there is no such convention at all. If there is such a convention, there will be no need for considering it or even the recommendation by the Privileges Committee that a motion to be adopted to delegate the powers of granting leave to the Speaker. Such a recommendation is itself an admission that what is being dome at present is irregular and unconstitutional.
Let it not be forgotten that although powers may be delegated to the Speaker to grant leave, the final powers are still with the Assembly could which could reject the Speaker’s granting of leave.
Tengku Razaleigh’s Contempt
Finally, the Privileges Committee, in its Report, referred to press reports and claimed that I was casting aspersions on the integrity of the Privileges Committee, suggesting disciplinary action against me on this score.
In making this recommendation, the Privileges Committee Members are in fact exposing their unfitness to sit on the Committee, Surely, the constitutional expert on the committee should know the other Rule of Natural Justice, that no one should be condemned without being heard. What are these press reports which I am ‘guilty’ of. Why wasn’t I called to confirm, explain, correct or deny such press reports?
During the November Assembly debate, the Member for Trenquerah condemned the Finance Minister, Tengku Razaleigh, for contempt of the Assembly and the Privileges Committee in publicly declaring that he had directed that the Kubu seat be declared vacant. The Member for Tranquerah demanded that Tengku Razaleigh should be summoned to appear before the Committee within three days to explain himself or purge himself of his contempt. I ant to know whether Tengku Razaleigh was ever summoned to appear before the Committee of Privileges?
Why is the Committee of Privileges so soft on Tengku Razaleigh and so hard on me, even without asking for my clarification and hear what I have to say?
The Report of the Privileges Committee will do that Malacca Assembly no credit. I would suggest that a completely new Committee, without a single person who has any personal bias, prejudice or interest in the matters examined, be established, to come out with an impartial finding based on the Malacca Constitution and general parliamentary practice. Otherwise, we are only making ourselves the laughing stock in the Parliamentary world, instead of setting historic precedents.
This is what the State Assembly must do if it cherishes constitutional propriety and its own dignity. If what the Barisan wants and interested in is to harass and hound the Opposition, and what to force a by-election in Kubu, then I challenge the Barisan to declare the Kubu seat vacant, and end this charade!