by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjung, Lim Kit Siang, in Petaling Jaya on Friday, February 26, 1993:
Call on Yang di Pertuan Agong to refer Section 3 of the 1992 Constitution Amendment Act to the Supreme Court for its advice as to whether it is an objective to the legal and constitutional review of the constituency redelineation by the Election Commission
The Government is collaborating with the Election Commission is trying to make Malaysians believe that the electoral constituency redelineation exercise has to be cancelled as a result of a ‘technical oversight’ by Parliament in enacting the 1993 Constitution Amendment Act to increase 12 new Parliamentary constituencies.
The Minister for Law, Datuk Syed Hamid Albar, told Berita Harian in its report yesterday that the Government had agreed to drop Section 3 of the 1992 Constitution Amendment Act (Act A837) to enable the Election Commission to carry out redelineation of electoral constituencies for Peninsular Malaysia and Sabah.
Syed Hamid said that such a constitutional amendment would be presented to Parliament in April.
From Syed Hamid’s statement, he is actually admitting that he had committed a great blunder in introducing the 1992 Constitution Amendment Bill to Parliament last October, and that Parliament had also committed a great blunder in blindly enacting it into law.
Barisan MPs are glad to ‘eat dead cats’ for blindly voting gin support of the 1992 Constitution Amendment Act
The Barisan Nasional MPs may be very glad to eat dead cats’ and be made the scapegoat as to why the constituency redelineation exercises had to be canceled in a gazetted notification of February 11.
This cannot be acceptable however to the DAP MPs or to the people.
The question is whether Section 3 of the 1992 Constitution Amendment Act had been so badly drafted that it created the scandalous situation whereby the constituency redelineation exercise had become unlawful and had to be cancelled.
If so, the next question is who were the persons and agencies responsible for the mistake of Section 3 – and why the Cabinet and Parliament were so careless as not to discover it before it became law.
However. I am not convinced that Section 3 of the 1992 Constitution Amendment Act could be blamed for the cancellation of the Election Commission redelineation exercise, and the Election Commission has failed to date to give one convincing reason why Section 3 of the 1992 Constitution Amendment Act should be repealed before it could legally and constitutionally undertake the constituency redelineation exercise.
Election Commission wants to repeal Section 3 of the 1992 Constitution Amendment Act so that it could claim that the cancellation of the redelineation exercise is not because of the DAP legal suit
I maintain that Section 3 does not poses an obstacle for a legal and constitutional redelineation of the electoral constituencies by the Election Commission, and its repeal is completely unnecessary.
All that the repeal of Section 3 would achieve is to give the Election Commission an honourable justification for the cancellation of the constituency redelineation exercise, so that the Election Commission does not have to admit that the cancellation is because of the DAP legal suit which would have proved that the Election Commission had acted illegally and unconstitutionally in the redelineation exercise.
On the day that the Election Commission ‘surrendered’ in the Kuala Lumpur High Court to the DAP legal suit challenging the constitutionality of its constituency redelineation exercise, and voluntarily and readily agreed to pay for my legal costs, the Election Commission Chairman, Datuk Harun Din, held a press conference to give his reasons for the cancellation of the redelineation exercise.
Datuk Harun Din said that when Parliament approved a additional 12 Parliamentary seats in October last year, the commission was directed to conduct the redelineation according to Article 113(3A) of the Federal Constitution when the suitable provision should have been Article 113(2).
He said: “If the commission undertakes the revision in accordance with Article 113(3A), it will not be able to redelineate the electoral boundaries for Trengganu and Penang which did not get any additional seat.”
Datuk Harun Din claimed that as a result, there was a duplication of legal provisions which cast doubts on the validity of the redelineation exercise which had been gazetted on November 26, 1992 under Article 113(2).
This contention by the Election Commission Chairman is not supported by Section 3 of the 1992 Constitution Amendment Act, which is in fact an enabling provision empowering the Election Commission to take into account the increase of 12 new parliamentary seats and Article 113(3A) even if the Election Commission had started its review under Article 113(2).
Section 3 of the 1992 Constitution Amendment Act does not mean that the Election Commission cannot redelineate the electoral boundaries for Trengganu and Penang which did not get any additional seat. All this section means is that it does not provide for any increase of parliamentary constituencies for Trengganu and Penang, but it does not forbid a redelineation of the electoral constituencies.
In other words, Section 3 of the 1992 Constitution Amendment Act is not the villain which has rendered the constituency redelineation exercise by the Election Commission unconstitutional and null and void and there is no need whatsoever to repeal it in the next ordinary parliamentary meeting which is to begin on April 26.
However, if the government has doubts about Section 3, as to whether it has put the Election Commission in an impossible position where it could not legally and constitutionally review the redelineation of electoral constituencies, then the government should invoke Article 130 of the Federal Constitution.
Under Article 130 of the Constitution, the Yang di Pertuan Agong may refer to the Supreme Court for its opinion any question as to the effect of any Constitutional provision which has arisen or appears to him likely to arise, and the Supreme Court shall pronounce in open court its opinion on any question so referred to it.
In this case, the effect of Section 3 of the 1992 Constitution Amendment Act has arisen, as to whether it nullifies any electoral constituency redelineation exercise of the Election Commission.
If the government invokes Article 130 and the Yang di Pertuan Agong refers Section 3 of the 1992 Constitution Amendment Act to the Supreme Court for its opinion, a ruling could be secured by the middle of March.
If the Supreme Court decides that Section 3 of the 1992 Constitution Amendment Act is perfectly in order and does not nullify the Election Commission from carrying out a lawful and constitutional Constituency redelineation exercise, the Election Commission can start another review straightway instead of waiting until the middle of the year.
However, this is not an acceptable option for the Election Commission and the government if they really believe that Section 3 of the 1992 Constitution Amendment Act is in fact no obstacle to the legal and constitutional redelineation of the electoral constituencies.