Democracy, Sabah, and the Malaysian parliament
In April 1985, the Government belatedly and very formalistically, celebrated the Silver Jubilee of the Malaysian Parliament. There was no attempt to assess and evaluate the record of the last 25 years of parliamentary democracy in Malaysia, to ascertain whether there is more to lament than to celebrate.
There are people, especially those in power, whose concept and proof of parliamentary democracy in Malaysia is the imposing Parliament House, the regular holding of general elections and the existence of Members of Parliament. To them, these are evidence enough of the functioning of parliamentary democracy in Malaysia.
In July last year, during the debate on my motion on parliamentary democracy in Malaysia, the Gerakan MP for Tanjong, Dr. Koh Tsu Koon, argued that the fact that in every general elections, there is a high voter turn-out of over 70% shows that there is a successful parliamentary democracy. By Dr. Koh reasoning, the Soviet Union must be the most democratic country in the world for they can get 99% or even 100% turn out in their elections!
There are people who are solely concerned about the external trappings and form but not the substance and meaning of parliamentary democracy. In the July Parliament debate, for instance, the Gerakan Deputy Agriculture Minister, Dr. Goh Cheng Teik, welcomed the Opposition to make hard-hitting criticisms in Parliament, if the drains were clogged, garbage not collected, or the power supply broken down but he did not want the Opposition to raise big issues, which could be emotional or what he said ‘exploited’. By this. Dr. Goh meant Parliament is not a place for the major national problems, like human rights, poverty, injustice, corruption, racial polarisation, national disunity, or issues like the $2.5 billion BMF Scandal, the Memali Incident or the Sabah Crisis to be raised.
Parliamentary democracy means noting if it does not mean the democratic right of the people to decide Malaysia’s national destiny and the right of Parliament as the apex of the political system to be the final repository of the people’s trust and power.
Unfortunately in the last 29 years since Merdeka, parliamentary democracy in Malaysia had suffered the double-pincer attack where the democratic rights of the people had been relentlessly curtailed, while Parliament’s role as the highest legislative and deliberative chamber in the country progressively usurped!
One will not be far wrong for saying that the history of parliamentary democracy in Malaysia is the history of the progressive emasculation of the democratic rights of the people and the principle of parliamentary sovereignty.
Parliamentary democracy cannot operate in a vacuum, with only an imposing Parliament House and regular general elections. Human rights is a pre-condition to democracy, and the trampling of human rights is also the trampling of democracy in Malaysia.
The fundamental rights of freedom of speech, expression, assembly and association enshrined in the Malaysian Constitution have been so qualified and limited that they are no more fundamental rights, but have become fundamental wrongs!
Parliamentary democracy comes under attack when the people do not have the fundamental right to free press, expression and information to enable them to make intelligent choices from competing policy alternatives, viewpoints, political parties and candidates.
If through the government control over the press, radio and television and other forms of mass media, the people are presented virtually with only one voice or one view, and a whole paraphernalia of repressive laws are used to shut out alternative views, whether by the ban on public rallies, or the use of the Universities and university Collect Act, the Trade Unions Act, the Official Secrets Act, the Sedition Act and the Printing Presses and Publications Act etc to prevent the free expression of dissent by the political opposition, trade union and peasant leaders, university academicians and students, then the parliamentary democracy that we have in Malaysia is far from a genuine article.
As a result, the freedom to vote in Malaysia has been deprived of much of its meaning and substance, not only because of unfair electoral weightage and delineation of constituencies, but most important of all, because of the deprivation of the voter the right to information and opinion to enable him to freely and intelligently exercise his vote.
Parallel with the relentless erosion of the fundamental liberties of the people is the progressive degradation of the Parliament’s role to a mere rubber stamp of the Executive without a mind or a will of its own.
In his speech at the Eighth Malaysia Law Conference in November 1985, the Prime Minister said that ‘If a democracy is to survive, the limits of the freedom granted must be observed judiciously. The division and the balance of power between the legislative, the executive and the judiciary must be observed.’
The person most guilty of upsetting the ‘division and balance of power between the legislative, the executive and the judiciary’ is none other than the Prime Minister, Datuk Seri Dr. Mahathir Mohamed, himself.
Over the years, the Executive (or to be more correct, the Prime Minister) had repeatedly usurped the powers of the legislative and judiciary.
The 1983 Constitutional Crisis is the best example, for not only was Parliament required to adopt the Constitutional amendments affecting the position of the Rulers without question, knowledge or understanding of the likely implications and repercussions, Cabinet Ministers were as much in the dark as ordinary Barisan Nasional MPs.
The Barisan Ministers have now become so addicted to usurping the powers and role of Parliament that they seemed to have turned the principle of parliamentary sovereignty upside down, believing that it is no more parliament which is supreme and sovereign, but the Ministers; that is no more the Executive answerable to Parliament, but the reserve!
This explained why when I asked in Parliament in October 1985 the latest estimates for the total costs of the Lumut Naval Base, which had already faced $720 million cost overruns from the original $480 to $1.2 billion, and whether nuclear missile facilities are being installed at the Base, the Ministry of Defence refused to answer on the ground that it involved government secrecy.
The government goes to Parliament for approval for allocation to the Ministry of Defence, but when MPs asked for information about the expenditure, they are told that it is ‘secret’ – including the total costs of the Lumut Naval Base!
If Parliament has a mind and a will of its own, and understands the meaning of the principle of sovereignty of parliament, then Parliament should not vote a single cent for the Ministry of Defence’s budget and let Mindef crawl to Parliament to beg for the money!
But then, this is expecting MPs to know their rights, powers and responsibilities, as well as their historic role to promote and defend parliamentary democracy in Malaysia.
If this is the case, there would not have been the incident when the Ministry in the Prime Minister’s Department, Datuk Mohamed Khalil Ya’akob, tried to interrupt me from talking about Petronas during the committee Stage on the Prime Minister’s Department in November 1985 on the ground that there was no vote provided for Petronas.
Datuk Khalil forgot that he was paid his Ministerial salary to partly look after Petronas, and if Petronas could not be discussed in Parliament because there was no direct vote to Petronas, then he must be prepared to suffer a salary cut to his Ministerial pay.
The sad thing about the episode was that Barisan backbenchers jumped up to support the Minister in his attempt to stop me from talking about Petronas’ affairs, when they should be defending Parliament’s right to hold Petronas to public account!
The height of irresponsibility by the parliamentary majority took place in October 1985 when Government MPs voted in rejection of the Fifth Parliamentary Accounts Committee Report because I had moved a motion to adopt it. What must cap it all was that the Chairman of the Fifth PAC, Datuk Lee Boon Peng, by then a mere backbencher in the Sixth Parliament, also voted to reject his own PAC Report. This must be the only instance of parliamentary ‘filicide’ – ‘ killing of son or daughter’ – in Commonwealth Parliamentary history.
Parliament, as presently constituted, has abdicated from its responsibility as the custodian of parliamentary democracy, to protect fundamental rights enshrined in the constitution, to check the abuses of governmental power as in the illegitimate exercise of emergency powers (to the extend that Malaysians are today living under four Proclamations of Emergency) and preserve the delicate division and balance of power between the legislative, the executive and the judiciary.
Sabah Crisis
Parliament’s failure is best seen in the rejection of my attempt to adjourn the Dewan Rakyat on March 19, 1986 to discuss the Kota Kinabalu riot that morning, and the campaign of agitation and escalation of fear, unrest and violence through illegal demonstrations, bomb blasts, arson and rioting to topple the elected system of government by violent and unconstitutional means.
The Deputy Speaker, Dr. Hamid Pawanteh, ruled however that through he agreed that my application was a definite matter of public importance, it was not ‘urgent’ enough to require the adjournment of the House to immediately debate it.
I had yesterday written to the Star’s letters page to reply to Tan Sri Ghazalie Shafie who typified the attitude held by Barisan Nasional leaders to the Sabah situation.
This is my letter on the Sabah situation
Editor,
Star
9.4.1986
Sir,
Sabah: Democracy in Chains
Tan Sri Ghazalie Shafie writes in today’s Star to clear the “mental confusion” of a “a well-informed Western journalist” who asked him the question: “Why does not the Federal Government allow Mr. Pairin to govern Sabah?”
At the end of his long letter, Tan Sri Ghazalie Shafied has succeeded only in showing that it was he himself who is full of “mental confusion” on the Sabah question, and who had failed to dichotomise his thoughts as to the role of a government and the role of a political party.
From the outset, I must state that the question posed by the “well-informed Western journalist”, is a question which the overwhelming majority of the people of Sabah and Malaysia had been asking for the last 11 months since the PBS general elections in Sabah in April 1985
Tan Sri Ghazalie denies that the Federal Government had by “some positive act” prevented the State Government from functioning.
When he was Home Affairs Minister, many person were detained indefinitely under the Internal Security Act for ‘directly or indirectly, consciously or unconsciously, wittingly or unwittingly, knowingly or unknowingly, either helping the Communist United Front cause or other grave national crimes.
In the Sabah case, the Federal Government cannot even plead that it had ‘unwittingly, unconsciously, or unknowingly’ prevented the Sabah PBS State Government from governing, for from its acts of abdication of Federal Government responsibilities (which is a positive act), it had helped in the destabilisation of the PBS Sabah State Government.
Although the Sabah State Government is governed by the PBS, an opposition to the Barisan Nasional, Datuk Seri Dr. Mahathir Mohamed, using Tan Sri Ghazalie’s vocabulary, should have dichotomised his role as Prime Minister of all Malaysians and his role as a political leader in his capacity as National Chairman of Barisan Nasional.
He was acting out his role as Barisan Nasional Chairman when he campaigned for Parti Berjaya in the 1985 Sabah state general elections, declaring that the Barisan Nasional would ‘sink or swim’ with Berjaya. We need not digress as to why Datuk Seri Dr. Mahathir was not keeping his promise to allow the Barisan Nasional to ‘sink’ in Sabah as Berjaya virtually sunk in Sabah Political waters – for without ‘artificial respiration’, Berjaya is likely to be completely wiped out from the Sabah political scene in the coming state general elections.
But Datuk Seri Dr. Mahathir had failed in his role as Prime Minister of Malaysia to ensure that all Malaysians, regardless of political affiliation or area, are entitled to the full guarantees of the Malaysian Constitution on democratic rights and freedoms, and to the protection of the Federal Government to uphold the Rule of Law.
Tan Sri Ghazalie Shafie argued that from Western democratic tenets, ‘legal confrontational behaviour of opposition parties should not be regarded as unusual’.
What Sabah went through in the first 11 months of the PBS Government was not ‘legal confrontational behaviour of opposition parties’ but a systematic campaign of illegal, extra-constitutional and extra- parliamentary actions to topple the elected government of PBS by the tactics of fear and violence.
In Peninsular Malaysia, DAP members and supporters held peaceful walk and jog and cyclethons in 1984 in our campaign to Save Bukit China from demolition by the Malacca State Government, but the Federal Government did not regard these actions as ‘usual’ and instead, harassed and persecuted the participants, to the extend that there are still several court cases pending in various parts of the country.
Why did Tan Sri Ghazalie Shafie regard the bombings, arson, rioting, the causing of deaths and damage of some $10 million property as not ‘unusual’?
Two days ago in Parliament, during the debate on the Election (Offences) Act Amendment Bill, I had referred to an earlier comment in Jasin by Barisan Nasional Secretary General and UMNO National Vice President, Ghaffar Baba, that the situation in Sabah was not serious as only five persons had died. I had asked how many persons must die in Sabah before the Federal authorities would regard the situation as serious?
Surely from his experience as the former Home Affairs Minister, Tan Sri Ghazalie Shafie would agree that it would have been very easy to nip in the bud the 12-day campaign of agitation and escalation of fear, unrest and violence through illegal demonstrations, bomb blasts, arson and rioting from March 12, 1986, and that the Federal Government must assume the fullest responsibility for the loss and injury of lives and destruction to property which ensued in those 12 days.
Surely he would agree that this spate of anarchy was well orchestrated and organised, as it could be called off and on at the command of the organisers as the situation demanded.
It is significant that Tan Sri Ghazalie Shafie had no word of condemnation or censure for the unlawful and violent acts perpetrated by the extremist political leaders – in the same ways as the Prime Minister had never condemned the bomb blasts, arson and rioting, only to express his regret.
Would Tan Sri Ghazalie Shafie have stood idly aside during his tenure as Home Affairs Minister, if in Peninsular Malaysia, opposition parties had resorted to a conspiracy to destablise the government through an orchestrated campaign of illegal demonstrations, bomb blasts, arson and rioting, describing these as ‘usual’ manifestation of a democracy ‘alive and kicking’?
Why then is Tan Sri Ghazalie Shafie singing a different tune now?
When I visited Kota Kinabalu with the DAP MP for Sandakan, Sdr. Fung Ket Wing, on March 21, 1986, I called on the Sabah Commissioner of Police, Haji Ahmad Maulana, and conveyed to him our concern at the police inaction against political leaders involved in the campaign of fear, anarchy and violence in Sabah.
He assured me that the Police would take action against those involved, including political leaders. I asked hat he was doing about the USNO MP for Kota Belud, Yahya Lampong, for instance, who was prominently involved in the Kota Kinabalu riot on March 19, as the Sabah newspapers carried photographs of Yahya Lampong leading the illegal procession which become a riot, resulting in a dusk-to-dawn curfew being imposed on Kota Kinabalu. I asked him whether it was true that Yahya Lampong had escaped to Brunei.
Haji Ahmad Maulana said he could not confirm whether Yahya Lampong had escaped to Brunei, although the Police was looking for him and others. He again assured me that the Police would take action against all political leaders involved in the spate of incidents in Sabah, and that the Inspector General of Police, Tan Sri Haniff Omar, had issued him a directive to arrest all political leaders involved.
But to date, nothing has been done, and the directive of the IGP seems to have been rescinded. Is this also ‘usual’ in the eyes of Tan Sri Ghazalie?
Attempts to destablise the PBS State Government by unlawful and unconstitutional means started right from the very beginning, as a spate of bomb explosions took place in Sabah in May last year.
I had telexed to the Prime Minister from Tawau at the end of May 1985 asking the Prime Minister to make an official visit to Sabah to assure all Sabahans that regardless of their political choice in the Sabah general elections, the Federal Government regard the people of Sabah as an integral part of Malaysia, and will not discriminate against them or allow anyone to use extra-constitutional and unlawful means to destablise the Sabah political situation. In other words, the Prime Minister should perform his role as the head of the Federal government of all people in Malaysia.
Unfortunately, Datuk Seri Dr. Mahathir Mohamed had only time to tour the other states, especially in the pre-general election campaigning, and even to go on several overseas trips, but had no time to cross the South China Sea to Sabah until March 24, 1986, when he wanted to impose the UMNO’s Sabah Formula on the PBS.
Tan Sri Ghazalie Shafie, in defending the Sabah Formula, said that the Barisan Nasional arrangement to solve the Sabah crisis stipulates “a willingness to resolve problems in the Barisan Nasional Supreme Council without publicity”.
Tan Sri Ghazalie Shafie should know better than anyone else that nothing of consequence is ever taken up and resolved at the Barisan Nasional Supreme Council. From past history, the Barisan Nasional Supreme Council only meets at the behest of UMNO to approve UMNO proposals to sack or admit component member parties, or to endorse UMNO decisions which needed the Barisan Nasional imprimatur, as the ultimatum to the MCA to leave the Barisan Nasional unless it resolved its party power struggle. Tan Sri Ghazalie Shafie should know what important policy problems are not even discussed and decided at Cabinet level, let alone the Barisan Nasional Supreme Council!
Tan Sri Ghazalie’s letter has only lent greater justification to the question: “Why does not the Federal Government allow Mr. Pairin to govern Sabah?” In trying to defend the indefensible, Tan Sri Ghazalie had highlighted the responsibility of the Federal Government in the Sabah crisis.
It was none other then Tan Sri Ghazalie who in the early 1970s made the famous statement that in Malaysia, opposition parties are both unnecessary and evil. It would appear that Tan Sri Ghazalie is now advocating that the Barisan Nasional Opposition parties in Sabah should fully act their ‘evil’ role.
Tan Sri Ghazalie distinction of ‘consensual democracy’ and ‘confrontational democracy’ is a very artificial one. Democracy can only succeed if there is a basic consensus by all political parties to accept the democratic rights of the people to choose the candidate, party or government of their preference, and to abide by the people’s verdict until the next general elections to change the people’s mind. Those who seek to undo the people’s electoral verdict by unlawful, unconstitutional and extra-parliamentary means or condone such actions know nothing about ‘consensus’ or ‘democracy’.
Tan Sri Ghazalie cannot justify the Federal Government’s role, or the actions of the irresponsible and extremist political leaders in Sabah for the last one year by his play with the terms of ‘consensual democracy’ and ‘confrontational democracy’. The issue is simple and straightforward: whether the Barisan Nasional believes only in democracy if it wins elections?
Your Sincerely,
SGD
Lim Kit siang
Parliament Opposition Leader”
As this book goes to press, it is uncertain how the Sabah crisis will develop, for there are now new rumours that pressures are being applied to compel PBS to toe the Barisan Nasional lines, and even that the Sabah state general elections might still be aborted at this late stage.
On 7th November 1985, I had sent a specially hand-delivered letter to the Sabah Chief Minister, Datuk Joseph Pairin Kitingan, proposing an action which I felt would have gone a long way to stabilise the PBS State Government. My letter to the Sabah Chief Minister was as follows:
“YAB Datuk Joseph Pairin Kitingan,
Chief Minister,
Sabah
7.11.1985
YAB Datuk
Political resolution of any doubt over
Legality of appoint of Chief Minister
As you are aware, I had right from the beginning criticised Tun Mustapha for his legal action to thwart the will of the people as expressed in the April 1985 general elections, and I had also publicly called on him to withdraw his suit challenging the legality of your appoint as Chief Minister.
I do not wish to discuss the legality of the question, which concerns a very technical point but the impending hearing of Tun Mustapha’s suit by the Sabah High Court on November 18 has undoubtedly been responsible for the latest developments in the Sabah political and constitutional crisis.
I believe that whatever doubt over the legality of the appointment of the Chief Minister could be resolved by the political process without having to await for a Court determination of Tun Mustapha’s suit, or even having to resort to the ultimate step of dissolving the Assembly to call for fresh general elections.
One political solution would be for you to summon the State Assembly, and while the Assembly is in session, for you to resign as Chief Minister. The Assembly should at the same sitting pass a vote of no confidence on Tun Mustapha, which will clear the way for the Yang di-Pertua Negeri to invite you to form the Sabah State government.
This will once and for all remove the basis of Tun Mustapha’s challenge. You will of course have to implicitly admit that there is doubt over the legality of your appoint as Chief Minister, but I believe the avoidance of repercussions that could arise from an adverse outcome, at least at the first instance of Tun Mustapha’s case outweigh any such admission.
In any event, as the purpose of this unusual move is to remove whatever doubt there may be over the legality of your appointment as Chief Minister (arising from a most astonishing series of events for which you are not in any way responsible) so as to defuse the political and Constitutional crisis to allow the government to get on with the job of ruling the State, I commend for your consideration this political solution to cure the doubt over the legality of your appointment once and for all.
Your sincerely,
SGD
Lim Kit Siang
Parliamentary Opposition Leader”
It is a pity Datuk Pairin did not try out my idea, for it was the doubt over the legality of his appointment as Chief Minister because of the earlier commission of Tun Mustapha by the Sabah Tuan Yang Terutama as Chief Minister which gave USNO and Berjaya the basis to sustain the long-protracted campaign to destablise the PBS government through the whole range of political, legal, constitutional and extra-parliamentary means.
It was reported in today’s press (April 18, 1986) that the Prime Minister had stated after the Barisan Nasional Supreme Council meeting on 9t April 1986, that there would be a ‘free for all’ in the Sabah State general elections, and that the Federal Government would ensure that the Sabah State general elections would be conducted fairly and justly, and that the Federal Government would ensure that security would not be threatened.
The Federal authorities have the responsibilities and capabilities with the forces at its command to uphold law and order. The question is whether the Federal Government would carry out these responsibilities
During the 12-day anarchy in Sabah last month with the spate of illegal demonstrations, bomb blasts, arson and rioting, the Federal Government leader kept declaring that the ‘Sabah situation is under control’, while lives were continually being threatened and property damaged.
It would be no exaggeration to say that Sabahans, while welcoming Dr. Mahathir’s assurance of ‘fair and just’ elections and maintenance of security, want to see these assurances fulfilled, and not a repetition of the empty statements in March about the ‘Sabah situation under control’.
Two weeks ago, I received a letter from a Sabahan, who wrote:
“We are just ordinary citizen of Malaysia of Sabah origin, having strong confidence in the democratic process, our government and the administration of justice. Over the last 12 days, we have lost confidence in everything the ordinary citizen upholds. Our term of reference is the violence we witnessed and suffered and the loss of lives which are conveniently forgotten. We are outraged that our country intends to call an enquiry over the six female students who died in a road accident in Texas rather than the violently tragic deaths of people who believed the asurance that ‘the situation is under control’. Is the State (of Sabah) such an unimportant child that doesn’t even warrant any kind of reaction from our national leaders?”
This is a cry from all Sabahans, of all races and religions.
I also welcome the Prime Minister’s statement that the Sabah crisis was not a Muslim-Christian fight. He should have made this statement at the height of the Sabah anarchy in the 12 days in March when extremist irresponsible Sabah political leaders tried to give their attempt to topple the Pairin PBS Government the appearance of a holy Islamic struggle, in their use of the Kota Kinabalu state mosque and the call by USNO and Berjaya leaders to Muslims to unite against oppression and discrimination.
If the Prime Minister had made this statement right from the beginning about the Sabah crisis being not a Muslim-Christian fight, it would have gone a long way to expose the evil motives and de-escalate the campaign and agitation of fear, unrest and violence of the irresponsible and extremist Sabah political leaders; and the 12 days of anarchy would not have taken place!
I hope that the Prime Minister is not making these statements just because the current PATA Conference, where some 2,500 delegates from all over the world are converging in Malaysia for the extravaganza in tourism – to be forgotten after the PATA gathering.
In the November 1985 Malaysia Law Conference, Dr. Mahathir said that if democracy is to survive, it must be understood that freedom is not license. He said: “Minorities too do have unlimited rights.” He should have added: “Majorities also do not have unlimited rights.”
The experience of the DAP Parliamentary Group in the past four years in the Dewan Rakyat is that the two-thirds majority of the Barisan Nasional are often used to ride roughshod over established parliamentary conventions, traditions and principles.
Tyranny of the Majority in Parliament
On December 7, 1985, when I was debating the Dangerous Drugs (Special Preventive Measures) Amendment Bill, questioning the principle of retrospective legislation and the use of Parliament to pre-empty cases pending in court, the Speaker, Tan Sri Zahir Ismail, interjected to remark that Parliament was akin to the highest court in the land.
It is precisely for this reason that public confidence and respect in the system of parliamentary democracy can only be maintained if Parliamentary proceedings are not only fair, but seen to be fair.
Unfortunately, there had been numerous examples where parliamentary proceedings, especially with regard to privilege matters, were not only unfair, but clearly seen to be blatantly biased.
On December 6, 1985, I had south to move a motion of privilege to refer the Information Minister, Datuk Rais Yatim, to the Committee of Privileges for misleading or even lying to the House on November 28, 1985. I had queried Datuk Rais why the Chinese operatic item, ‘Toi Looi Hua’ specially staged by Sudirman and Noor Kumalasari in the television programme ‘Setangkai Irama’ was subsequently excised by the RTM authorities. The Minister told Parliament that this was at the request of the two singers. This was rebutted by Sudirman’s agent, Mike Bernie Chin, who said that the operatic item was conceived by Sudirman and that both singers had gone to the extend of hiring the Chinese classical costumes and learning the finer points of Chinese opera for the show as their contribution toward racial integration, in line with Government policy.
The Deputy Speaker, Dr. Hamid Pawanteh, refused to allow me to read out the privilege motion, disregarding two recent precedents in the House. The first was set by the Speaker, Tan Sri Zahir Ismail, during the privilege motion to suspend the DAP MP for Jelutong, Sdr. Karpal Singh, on November 22, 1984, when he overruled my objection with the decision that a privilege motion under Standing Order 26(1)(p) could be raised in the House without notice at any time.
The second precedent was set by Dr. Hamid Pawanteh himself on 19th November 1985, when I sough to move a privilege motion against the UMNO MP for Pasir Puteh, Wan Najib Wan Mohamed, for uttering words likely to promote ill-will or hostility between different communities, Wan Najib had said in Parliament on 14th November 1985 that “Kalau kita hendak jaga adat kita, kalau kita ini orang Cina, pergilah ke negeri Cina. Kalau kita orang India, hendak jaga adat kita, pergilah ke India. Jangan kita hidup dalam masyarakat majmuk seperti ini.”
The Deputy Speaker, who was then in the Chair, recognised my right to read out the privilege motion in accordance with the precedent set by the Speaker, but ruled that it must give way in precedence to government business.
The Deputy Speaker had made a wrong ruling, not only because it went against the clear ruling of the Speaker in the motion against Sdr. Karpal Singh, on November 22, 1984, but because he had failed to understand that according to parliamentary traditions and conventions, it is the Speaker or Deputy Speaker who decides on whether to give precedence to privilege motions – which has nothing to do with giving way to government business.
He said that my privilege motion could be raised after the conclusion of ‘official business’, when he knew fully well that the Minister in the Prime Minister’s Department, Datuk James Ongkili, was already standing up to move a motion that the Dewan Rakyat ‘shall not adjourn until the completion of government business’ – phraseology to mean that all non-government business, namely my two privilege motions against Wan Najib and Datuk Rais Yatim and my two substantive motions to question the Deputy Speaker’s two other previous decisions, would be killed without time being allocated for their debate.
Clearly double standards were employed where privilege motions against the Opposition were given priority while privilege motions against Government MPs and Ministers ‘killed’ by the parliamentary maneuver of not giving time.
This is like a court giving immediate dates to try criminal charges against Opposition Members, while refusing to set any date for trial of criminal charges against Government leaders, and even dragging out the fixing of dates indefinitely to avoid any ‘trial’ whatsoever. How can such a Court command any public respect or confidence? This is the style of operation of a Star Chamber, as in 17th century England, functioning as an engine of oppression, discrimination and injustice, and not as an even-handed Court guided by justice, integrity and fair play.
What was even more shocking was that the basic motions of the rules of natural justice were also alien and foreign to Dr. Hamid Pawanteh, as illustrated by his conduct and rulings on November 19, 1985 with regard to my privilege motion against Wan Najib.
Dr. Hamid frequently quoted Standing Order 43, which provides that the decision of the Chair shall be final and not open to appeal or review except by the way of a substantive motion, which does not require more than two days’ notice. Yet when I moved two substantive motions under Standing Order 43 at the end of 1985 to challenge his decisions, time was not given for the debate.
Parliament cannot expect any public respect or confidence as the highest deliberative and legislative chamber, or even as the highest court in the land, if it operates in disregard of basic notions of justice and fair play, which govern proceedings of less august organisations and institutions and are even understood by student bodies.
In the latest parliamentary meeting in March/April 1986, DAP MPs ran into the problem of the Deputy Speaker’s ‘Nelson’s eye’ problem, where he refuses to see DAP MPs who stand up to ask supplementary questions during question time.
When I protested on the last parliamentary sitting on April 8, at the Deputy Speaker’s ‘Nelson’s eye’, Dr. Hamid Pawanteh said he could not allow me to ‘monopolise‘ the question time. On that day, I had only asked one supplementary question. The Parliamentary Reports during this four-week meeting show that UMNO backbenchers had asked several supplementaries each a day, without giving rise to problems of ‘monopoly’. How could my asking a second, or a third supplementary question create ‘monopolistic‘ problems?
It is true that DAP MPs ask more hard-hitting questions than Barisan Nasional MPs, but it is not the task of the Deputy Speaker to try to save Ministers or Deputy Ministers from embarrassment when they show their ignorance or incompetence during their reply.
In arbitrarily cutting down on the right of MPs to ask supplementary questions, the Deputy Speaker was defeating the purpose of question time, which is to elicit information from Ministers and which represents the most direct act of Ministerial accountability to Parliament.
Finally, I want to conclude on the Government’s highly objectionable practise of misuing its Parliamentary majority to pre-empt court decisions, and prejudice the right of parties before the Courts.
The most famous case concerned the Petronas take-over and bailout of Bank Bumiputra and the Bumiputra Malaysia Finance because of their $2.5 billion loans scandal in Hong Kong.
The DAP decided that a test case should be instituted in the public interest against such ultra vires action by Petronas, which was set up by Parliament as a custodian of the country’s petroleum resources and interests instead of being a bail-out of failed government agencies and institutions.
DAP lawyer, Sdr K.C. Cheah, files an action in the High Court, Originating Summons No . A245/84, to challenge the legality of the Petronas take-over of Bank Bumiputra and BMF bad loans in December 1984.
The case was fixed for hearing on 26th March 1985, but was adjourned on the application of the counsel for Petronas. On 11th April 1985, the government rushed through an amendment in Parliament to the Petroleum Development Act(PDA) to give retrospective legality to its take-over of Bank Bumiputra and he BMF’s bad loans.
It was lawyer V.K. Moorthy, who did his Master of Law thesis at the Monash University on Petronas, who argued in his book ‘Petronas – Its Corporate and Legal Status’ that Petronas possesses more of the characteristics of a public statutory corporation than that of a private company. He argued that the Petroleum Development Act is the controlling statute, and the Companies Act cannot enlarge on the objects of the controlling Act. Petronas can undertake only the business authorised by the PDA. Any other business which is not envisaged by the PDA will be ultra vires Petronas.
The PDA Amendment Act provides for a new Section 3A with new powers to Petronas:
- to take over or acquire by agreement, assignment, purchase or by any other means the whole or any part of any commercial undertaking, business or enterprise of any form;
- such acquisition may be from any person or body of persons (corporate or incorporate); and finally
- Petronas may after the takeover or acquisition carry out or enter into any activity whether mentioned in the Act or not provided such activity was carried out by and for the purpose of that undertaking, business or enterprise
Mr. Moorthy is of the view that although the PDA Amendment Act turned Petronas into a multi-purpose corporation, undertaking various kinds of business and not merely confined to the role of a Petroleum Authority as originally envisaged, the doctrine of ultra vires still applied to Petronas. In his paper to the Society of Petroleum Engineers on 23rd October 1985, Mr. Moorthy expressed the view that the Petronas’ purchase of a B747 aircraft and leasing it to MAS is outside the scope of the new section 3A, and hence the entire transaction is ultra vires the powers of Petronas.
Would Parliament have to pass new retrospective legislation to legalise the Petronas’ purchase and lease of the B747 aircraft to MAS?
Lim Kit Siang
Parliament House
Kuala Lumpur
10th April 1986