The 1983 Constitution (Amendment) Bill proposed various amendments including increase of parliamentary constituencies, to lay down the detailed process whereby a Member of Parliament convicted of a criminal offence would lose his qualifications to be a Member of the House, provisions with regard to the Deputy Chairman and Members of the various Service Commissions, and amendments proposed to Article 66 and 150.
I have been following the Parliamentary debate these two days on the Bill, as I wanted to know the views and stand of the Barisan MPs, in particular the UMNO MPs, and I find this debate most extraordinary. We seem to be staging a Wayang Kulit, where we see the shadows but not the substance, as nobody seems to be brave enough to deal with the real substance of the amendments.
The Bill before the House is one of the most important amendments to be made to the Constitution, as for the first time since Merdeka, amendments are proposed which would have grave consequences to the system of government in Malaysia. Everybody is aware of the great import of this amendment, but everyone steers clear of the subject. In the Parliament canteen or outside this Chamber, when MPs discuss about the 1983 Constitution Amendment Bill, they do not discuss about the proposed increase of parliamentary seats, nor do they discuss the proposed amendment to Article 48 to specify the circumstances whereby an MP convicted of a criminal offence would lose his seat. What they discuss is the purpose, reason and consequences of the proposed amendments to Article 66 and Article 150 of the Constitution! Similarly, outside Parliament, when the present batch of constitutional amendments are discussed by those who are knowledgeable, by the political leaders inside or outside the Barisan Nasional, by the press, they all focus their attention on the proposed amendments to Article 66 and 150. But in these two days of debate, all the Barisan MPs avoided these two Articles, and even those UMNO MPs who had always been the first to jump up and speak and are in the habit of breathing ‘fire and brimstone’ are this time uncommonly and extraordinarily quiet and subdued.
This is a most unhealthy development, highly inimical to the growth of a democratic environment and climate, where at least, Members of Parliament should be able to discuss in a frank and honest manner why certain Constitutional amendments are necessary in Parliament itself. It is most regrettable therefore that everyone is avoiding the most substantive amendments, everyone runs away from Article 66 and 150, when they constitute basic amendments to the system of government with far-reaching consequences. This is why I said at the beginning that the two-day debate resembles a Wayang Kulit than a Parliamentary session. In this connection, I wish to refer to what the Prime Minister, Dr. Mahathir Mohamed, wrote in The Malay Dilemma, his famous book, on Constitution amendments. This is what he wrote:
“The manner, the frequency, the trivial reasons for altering the Constitution reduce this supreme law of the nation to a useless scrap of paper.”
“Here I wish to stress that the ‘manner’ in which the present batch of Constitution amendments have been presented, without giving the real reasons why the Constitution should be amended, has “reduce this supreme law of the nation to a more useless scrap of paper.”
The Prime Minister has moved an amendment to Article 66(5) so as to provide that if for any reason whatsoever a Bill is not assented to by the Yang di Pertuan Agong within fifteen days of its being presented to him, he shall be deemed as to have assented to the Bill and the Bill shall accordingly become law.
ROYAL ASSENT
It is very clear that the legislative process involves the passage of the Bills by the two Houses of Parliament and their receiving the Royal Assent by the Yang di Pertuan Agong. But with this amendment, a major change is being made where, in certain circumstances, the Royal Assent is not necessary but would be presumed to have been given.
From constitutional theory, Royal Assent is an integral part of the legislative process, and is needed to perfect the legislative process, to transform bills into laws. Without the Royal Assent, a bill that has been passed by the two Houses of Parliament has not yet become law.
When the Malaysian Constitution was drafted, the Reid Commission’s recommendations made it very clear that the Royal Assent is an integral and inseparable p art of the legislative process, and that it is the convention to be accepted that that Royal Assent cannot be withheld when advised by the Cabinet.
Here I wish to refer to an article on ‘The Constitutional Position of the Yang di Pertuan Agong’ in the book, ‘The Constitution of Malaysia – Its Development: 1957 – 1977’ edited by Tun Mohamed Suffian, H.P. Lee and F.A. Trindade, where on page 110, on the subject of Assent, the writer wrote:
“For a Bill to become law it is necessary that it be passed by both House of Parliament, and be assented to by the Yang di Pertuan Agong. The Yang di Pertuan Agong signifies his assent to a Bill by causing the Public Seal to be affixed to the Bill. An air of unreality surrounds the assent of the Yang di Pertuan Agong because the assent can never be withheld. This aspect of the Constitution was severely criticized by Mr. Justice Abdul Hamid in his note of dissent to the proposals of the Reid Commission where he said:
‘If this article is allowed to remain in the draft as it stands the Yang di Pertuan Agong will have no choice in the matter of assent. He should be bound to assent to the Bill passed by the two Houses, In other words a Bill passed by the two Houses shall become law. If this is the intention, it is far better to approach this subject direct by saying… that a Bill passed by the two Houses shall become law. No mention of assent is necessary at all. But if assent is to be mentioned the Constitution should give the power to the Yang di Pertuan Agong to accord assent or to withhold assent. In all constitutions the power to accord assent goes with the power to withhold assent.’
“Nevertheless, it does not seem possible for the Yang di Pertuan Agong to withhold assent to a Bill passed by both houses of Parliament.”
I fully agree with the Constitutional position that in a constitutional monarchy, Royal assent cannot be withheld, but Royal Assent must be given before the perfection of the legislative process.
There are here two separate matters: one whether Royal Assent can be assumed to be given after 15 days of its representation, and whether the Royal Assent is a necessary and inseparable part of the legislative process which could not be assumed.
Some Barisan Nasional Mps had hinted that they support the constitutional amendments because this is in line with the Barisan Nasional Government’s emphasis on efficiency and speed, implying that the 15-day assumption on Royal Assent is good for efficiency and speed.
This amendment has nothing to do with efficiency or speedy executive action, but involves the fundamental question as to whether Royal Assent, which could not be withheld, is still nonetheless necessary before the perfection of the legislative process. If the answer is in the negative, then one day we may reach a position where there would be a Constitutional amendment to provide that if for any reason a Bill which the Executive presented to Parliament is not passed within 15 days of such presentation, it shall be deemed to have been passed by the Parliament, on the grounds of ensuring ‘efficient and speedy’ administration!
This is unthinkable. The Royal Assent must be given before a bill becomes law. I do not understand why the proposed amendment to Article 66 is necessary, when it is very clear from our Constitution that Royal assent cannot be withheld, and if Royal Assent is withheld and the legislative process is blocked, there are adequate provisions in the Constitution to deal with this problem. If we do away with the need for a Royal Assent, it may be construed as a step forward from the republican philosophy, but it is clearly a major alteration of the system of government we have since 1957.
Part IV of the Malaysian Constitution, makes provision for the election of the Yang di Pertuan Agong by the Conference of Rulers, as well as for his removal by the Conference of Rulers. Furthermore Article 33 also provides for the appointment of a Timbalan Yang di Pertuan Agong with powers to exercise functions of the Yang di Pertuan Agong.
Thus, Article 33(1) stipulates:
“There shall be a Deputy Supreme Head of the Federation (to be call the Timbalan Yang di Pertuan Agong) who shall exercise the functions and have the privileges of the Yang di pertuan Agong during any vacancy in the office of the Yang di Pertuan Agong and during any period during which Yang di Pertuan Agong is unable to exercise the functions of his office owing to illness, absence from Federation or for any other cause, but the Timbalan Yang di Pertuan Agong shall not exercise those functions during any inability or absence of the Yang di Pertuan Agong which is expected to be less than fifteen das, unless the Timbalan Yang Dipertuan Agong is satisfied that is necessary or expedient to exercise such functions ”
Thus, the circumstances described by the Prime Minister where for any reason whatsoever a Bill is not assented to by the Yang di Pertuan Agong within fifteen days of its being presented, is already provided for by Article 33(1) where the Timbalan Yang di Pertuan Agong is empowered to give the Royal Assent instead.
In view of the fact that there are existing constitutional provisions to deal with the situation described by the Prime Minister, his house should be given a true picture as to why the present amendment is being sought.
I do not think there is any other country in the world which would have our provision as proposed, where Royal Assent could be deemed to have been given when it was never given!
This would make it more imperative for the Government to explain clearly – even though Barisan MPs do not need explanations – to the people why the Constitution is being amended in this fashion, with such great changes to the distribution of power, when there are already existing provisions in the Constitution for the Timbalan Yang di Pertuan Agong to give the Royal Assent if for any reason the Yang di Pertuan Agong could not give the Assent.
DEROGATION
In 1971, the Constitution was amended to entrench certain issues making them ‘sensitive’ issues, which could not be questions or challenged. Anyone challenging or questioning these ‘entrenched’ issues, namely Bahasa Malaysia, Citizenship, Malay Special Rights and Part IV of the Constitution on the position of the Rulers, would be committing the offence of sedition.
However, in excluding the need for the Royal Assent in certain circumstances, aren’t we taking an action which would be tantamount to a derogation of the sovereignty of the Rulers? Aren’t we in fact challenging and questioning the sovereignty of the Rulers in amending the Constitution to exclude the need for a Royal Assent in certain circumstances, when all along, the Royal Assent, which could not be withheld, is needed to perfect a bill to become law?
If this is the case, then Members of Parliament would be liable for the offence of sedition, as MPs have been stripped of the privilege of parliamentary immunity in matters of the four ‘sensitive’ issues. Probably the Speaker should make a ruling whether the Dewan Rakyat is embarking on a course of sedition.
I hold that this amendment to Article 66 is a very important and fundamental amendment, and probably no other amendment in our constitutional history is as important as this in terms of its implication for the system of government since Merdeka in 1957. Why is this amendment dealt with in the Parliamentary debate as if does not exist? I know that what I said here with regard to Article 66 and even 150 would be confined to Parliament, for I understand that the press had been directed not to report any speeches or debates on the amendments to Article 66 and 150. This directive itself calls for an explanation by the Prime Minister!
PROCLAMATION OF EMERGENCY
Article 150 of the Constitution is concerned with the Proclamation of Emergency. My colleague, the MP for Kepong, Dr. Tan Seng Giaw, had spoken of the abuses of this provision in the past and present, as even now, there are four Proclamations of Emergency which are all in force, as if without four Proclamations of Emergency, there can be no peace, harmony and security in the country. This is an abuse of emergency powers. We must ask why Proclamations of Emergency made at a time to deal with circumstances which do not exist anymore, should still be in force. There is the 1966 Proclamation of Emergency to topple Stephen Kalong Ningkan, then SNAP leader, as Sarawak Chief Minister; the 1963 Indonesian Confrontation Proclamation of Emergency; the 1969 May 13 Proclamation of Emergency; and the 1977 Proclamation of Emergency to topple the PAS government of Kelantan. All these four proclamations of Emergency are still in force, although the circumstances which gave rise to the Proclamations have long ceased to exist. Why?
However, the amendment proposed to Article 150 would involve rave shift of constitutional power. The present Article 150(1) of the Constitution reads:
“If the Yang di Pertuan Agong is satisfied that a grave emergency exists whereby the security, or economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of emergency making therein a declaration to that effect.”
Now it is proposed to amend this Article where the words ‘Yang di Pertuan Agong’ is substituted by ‘the Prime Minister’, so that the amended article 150 would read:
“If the Prime Minister is satisfied that a grave emergency exists whereby the security, or economic life, or public order in the Federation or any part thereof is threatened, he shall advice the Yang di Pertuan Agong accordingly and the Yang di Pertuan Agong shall then issue a Proclamation of emergency making therein a declaration to that effect.”
Why is this amendment sought, for surely, there must be reasons before Constitutional amendments are made.
The words, ‘If the Yang di Pertuan Agong is satisfied’ in the existing Article 150 is capable of two interpretations. Firstly, that it is the Yang di Pertuan Agong himself who must be ‘satisfied’ that a grave emergency exists before a Proclamation of Emergency is issued. The second interpretation is that the Yang di Pertuan Agong’s ‘satisfaction’ is not personal, subjective one, but ‘satisfied as advised by the Executive’. Once the Executive is satisfied that there is a grave emergency situation and advises the Yang di Pertuan Agong, the Yang di Pertuan Agong shall issue a Proclamation of Emergency.
If we follow the case of N. Madhavan Nair v. Government of Malaysia (1975) we can get the Government’s interpretation of ‘If the Yang di Pertuan Agong is satisfied’, as the first one. In this case, which challenges the legality of the Emergency Ordinances made under the Proclamation of Emergency of 1969, revolves around Emergency Ordinance No. 1 which was missing. The then Prime Minister, Tun Razak, made an affidavit, which said:
“9, I refer to paragraph 12 of the affidavit of N.Madhavan Nair and state that owing to the grave emergency threatening the security of the country during the ‘May 13’ incident, I personally presented the said Ordinance to His Majesty the Yang di Pertuan Agong at Istana Negara for his consideration and approval. Having considered the said Ordinance and after being satisfied that immediate action was required for securing public safety, the defence of Malaysia, the maintenance of public order and of supplies and services essential to the life of the community, His Majesty the Yang di Pertuan Agong approved the promulgation of the said Ordinance. His Majesty the Yang di Pertuan Agong signed the said Ordinance accordingly. Immediate arrangement was then made to print and publish the said Ordinance in the Government Gazette.”
It is very clear from Tun Razak’s affidavit that the Yang di Pertuan Agong must be ‘satisfied’ personally, and not merely ‘satisfied as advised by the Cabinet’, for the Yang di Pertuan Agong had to ‘consider and approve’ the proposed Ordinance. If the Yang di Pertuan Agong had to be personally satisfied before he approves the promulgation and signs the Emergency Ordinance under Article 150(2), surely the Yang di Pertuan Agong must also be personally satisfied that a grave emergency exists before issuing a Proclamation of Emergency.
NULL AND VOID
Now, with the proposed amendment to Article 150(1), the ‘satisfaction’ that a grave emergency exists to warrant a Proclamation of Emergency attributed to the Yang di Pertuan Agong would be shifted to the Prime Minister, which constitute a major change. This amendment to Article 150(1), together with that amendment to 150(2) on the Proclamation of Emergency before the actual occurrence of the event which threatens the security, or the economic life, or public order of the Federation or any part thereof, if the Prime Minister, replacing the Yang di Pertuan Agong, is so satisfied that there is imminent danger of the occurrence of such event, must be also be seen in the light of recent Constitutional changes.
In 1979, the Privy Council in the case of Teh Cheng Poh alias Char Meh v. The Public Prosecutor ruled that the Essential (Security Cases) (Amendment) Regulations 1975, made by the Yang di Pertuan Agong under the Proclamation of Emergency of 1969 and the Emergency (Essential Power) Ordinance 1969 were null and void. As a result, Parliament was summoned into emergency meeting to amend the Constitution to ratify the emergency laws, together with the inclusion of a new clause in Article 150(8) which made the exercise of the powers of proclaiming emergency, non-justiciable.
Thus Article 150(8) provides that the ‘satisfaction’ of the Yang di Pertuan Agong to proclaim emergency shall not be challenged or called in question in any court on any ground; and that no court should have jurisdiction to entertain or determine any application, question or proceeding, in whatever form on any ground, regarding the validity of Proclamation of Emergency.
Now, with the present batch of amendments, the transfer of the powers and functions in Article 150 from the Yang di Pertuan Agong to the Prime minister, would also make the Prime Minister’s ‘satisfaction’ that a grave emergency exists or there is imminent danger to warrant the issue of a Proclamation of Emergency ’non-justiciable’ and above the law, regardless of whether the Prime Minister had acted in mala fide or for any other wrongful reason. This has grave implications, not only with regard to Constitutional powers, but also to the people, who may have to suffer under such emergency conditions. I am indeed amazed that such a far-reaching amendment is virtually overlooked.
Another important amendment is with regard to the changes sought for the Schedule 8 of the Constitution on ‘Provisions to be inserted in State Constitutions’, to extend the 15-day rule on Royal Assent to the State Governments, so that if a Bill passed by a Legislative Assembly of a State is not assented to within fifteen days of its being presented to the Ruler, he shall be deemed to have assented to it and the Bill shall accordingly become law.
It is clear that the mere amendment to Schedule 8 of the Federal Constitution would not be sufficient to insert the 15-day Deemed Royal Assent Rule in the State Constitutions. The State Constitutions have to be amended separately by the various State Assemblies.
This is clear from Article 71(4) of the Constitution, which provides:
“If at any time the Constitution of any State does not contain the provision set out in Part 1 of the Eight Schedule, with or without the modifications allowed under Clause 5 (here in after referred to an ‘the essential provisions’) or provisions substantially to the same effect, or contains provisions inconsistent with the essential provisions, Parliament may, notwithstanding anything in this Constitution, by law make provision for giving effect in that State to the essential provisions or removing the inconsistent provisions.”
This means that the amendment to Schedule 8 does not automatically insert the 15-day Deemed Royal Assent rule into the various State Constitutions. It is only after the State Constitutions are not amended after the amendment to Eight Schedule that Parliament would have to pass a law to give effect to the 15-day Deemed Royal Assent Rule.
I want to ask what would happen if at state level, this 15-day Deemed Royal Assent Rule does not get the Royal Assent – for clearly a constitutional crisis will arise
For the sake of a healthy democratic development, we should be able to discuss full and frankly the reasons for these constitutional amendments, and not as at present, pretend nothing important or substantive is being introduced, when the public at large know that significant constitutional changes are being made.
It will not raise the standing or dignity of the House if we continue in this fashion, to avoid discussion of really important and substantive issues, its merits and demerits, for this example may become the precedent for the future, where the real reasons for introducing a particular piece of legislation are not disclosed to Parliament.
This had happened before. Thus, when Local Government elections were suspended, the Government gave as reason the Indonesian Confrontation, when in actually fact, it was their fear that Opposition would sweep the local government elections, and control the municipal and local authorities.
Again, when the Constitution was amended to proclaim Kuala Lumpur as a Federal Territory, the real reason was not disclosed, namely to ensure that the Selangor state would not fall into Opposition control.
Parliament must not degenerate into a Wayang Kulit.
The points I have raised are very pertinent Constitutional matters which I hope the Prime Minister would give adequate replies when winding up the debate. As for the other amendments to the Constitution, as my other comrades have spoken on them, I would not speak on them.
I conclude in urging the Prime Minister to give serious replied to the points I have raised, in the interest of a healthy parliamentary democracy.
(After the Second Reading of the Constitution Amendment Bill, Lim Kit Siang proposed that the Bill be referred to a Select committee)
I am proposing that the Constitution Amendment Bill be referred to a Select committee after Second Reading, for three reasons:
Firstly, the Prime Minister has not given any serious or satisfactory reply to the points raised with regard to the need to amend Article 66, especially on whether the excluding of the need of Royal Assent in certain circumstances constitutes a questioning or challenging of the sovereignty of Rulers, one of the four subjects entrenched as ‘sensitive’ and not permissible. The Prime Minister merely made a highly politicised speech disregarding the constitutional and legal aspects and implications.
Secondly, the same applied to Article 150. Apart from politicking, the Prime Minister had not replied to the constitutional and legal issues raised in connection with the proposed amendment.
Thirdly, the manner the 1983 Constitution Amendment Bill is introduced and debated is most unhealthy, and bodes ill for future parliamentary development.
(Speech by Parliament Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang in Dewan Rakyat on the Constitution (Amendment) Bill 1983 on August 2, 1983)