Amendment to Eighth Schedule of Federal Constitution will destroy Federal-State concept as it undermines the sovereignty of State Constitutions conferred by the Merdeka Constitution

Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjong, Lim Kit Siang, in the Bewail Rakyat on Tuesday, July 19, 1993 when moving amendments to the Constitution Amendment (No. 3} Bill during Committee Stage

Amendment to Eighth Schedule of Federal Constitution will destroy Federal-State concept as it undermines the sovereignty of State Constitutions conferred by the Merdeka Constitution

The first amendment I wish to introduce is to Clause 3 of the Constitution Amendment (No.3) Bill, to substitute the words “two years” by “three months” for the amendment to Article 54(1) so that the ban on Parliamentary by-elections because of casual vacancies is only for three months before the completion of the full five-year term of Parliament, and not two years as now suggested by the Barisan Nasional Government.

The proposal to ban parliamentary by-elections arising from casual vacancies like the death of an MP is most undemocratic as it will deny the people in the affected constituencies the right to be represented by Members of Parliament for up to two year’s.

This provision was first amended in 1968 where there would be no by-elections in the case of casual vacancies in the Dewan Rakyat which occurred within six months of the completion of the full term of Parliament.

Now, Dr. Mahathir is taking this another step further stretching the ban on by-elections from six months to two years before the completion of the full term of Parliament, Can the Deputy Prime Minister, Ghafar Baba, explain why the Government has decided on two years? Or is it just a figure out of thin air?

Once such a precedent is allowed, the period could be further extended until finally no by-elections at all would be allowed in between general elections!

What is the reason for such an undemocratic amendment, of the Constitution?

The reason must lie in the fear of the Barisan Nasional in fighting by-elections. Of course, there would be victories and defeats for the Barisan Nasional in by-elections, but whether Barisan Nasional wins or loses, it has to spend enormous sums of money, sometimes running into tens of millions of ringgit for one by-election.

In fact, Malaysian electoral politics have reached a stage where the greatest service a Barisan Nasional MP can perform for his constituents is to die so that there; could be a by-election, where a phalanx of Ministers will descend, on the constituency carrying bags-full of money for distribution!

It is most unfair to deny the people the right to total government attention in one constituency because of a by-election, as happened in Prai by-election where the MIC President and Minister for Energy, Telecommunications and Post, Datuk Sainy Vellu, promised return to visit Prai every week and he would allow his ‘head to chopped off. Now he visits India snore often than keeping his promise to visit Prai.

The Speaker should remain non-partisan and should not be dragged into the political arena
My second amendment, is also to the government’s proposal to amend Article 54{1), where it is proposed that the two-year ban on by-elections would be subject to one condition – where “the Speaker-notifies the Election Commission in writing that the numerical strength of the party which constitutes a majority of all the members of the House of Representatives is being affected by such vacancy, in which event such vacancy shall be filled within sixty days from the date of the receipt of that notification.”

T propose the deletion of this provision as the Speaker should rise above partisan politics – which includes the question as to whether the ruling party can or cannot continue in office because of loss of majority support from MPs in the House.

The question “whether the numerical strength of the party which constitutes a majority of all the members of the House of Representatives has been affected by such a vacancy” can become a very controversial question – and it is most unwise for the Speaker to wade in the realm of party politics.

What does this provision really mean and when does “the numerical strength of the party which constitutes a majority of all the members of the House of Representatives has been affected by such a vacancy”?

The numerical strength, of the party which constitutes a majority of all the members of the House of Representatives can be affected in three situations;

Firstly, when there is a loss of one seat;

Secondly, when there is a loss of two-thirds majority; and

Thirdly, when there is a loss of simple majority.

We cannot pass a law where there is ambiguity as to which of these three situations are being referred to, leaving to the Speaker to decide in his discretion as to when his unique responsibilities could be invoked to notify the Election Commission to hold by-elections despite the two-year ban.

We should also not. make the mistake to believe that even in the case of simple majority, there would be no problems, as examples in other countries should tell us that there could be endless combinations and permutations in the controversy as ^to whether the “numerical strength of the party which constitutes a majority of all the members of the House of Representatives can be affected”.

I will give one example, which I agree is far-fetched at the moment in Malaysia, though it. is a common occurrence in other countries – but any law or constitutional amendment we pass must be able to deal with such scenarios which though sound far-fetched today may become very commonplace tomorrow.

For instance, if as a result of the big fight in the UMNO Baru leadership contest in November, there are great changes and defections, not only in UMNO Baru but in other Barisan Nasional parties, creating a situation where the majority control of the present coalition comes under question. And in the midst of political uncertainty, a Barisan Nasional MP dies. What is the Speaker to do?

How is he to ascertain whether “the numerical strength of the party that constitutes a majority of all the members of the House of Representatives is affected by such a vacancy”? Is he to summon the Prime Minister to demand to know how many MPs still support him? Or is he to convene an emergency meeting of Parliament to demand that the Prime Minister must secure a vote of confidence in the House?
Furthermore, if the majority of the MPs withdraw support from the Prime Minister, but by a majority of one, and decided – let’s say – to support Dat.uk Seri Anwar Ibrahim as Prime Minister is it to be the Speaker’s role to write to the Election Commission to order by-election in the hope that, this could save the incumbent Prime Minister?

These and many other questions and scenarios are raised to emphasise the point that the Speaker should, not get involved in such political controversies.

My third amendment concerns the proposal to amend section 9 of the Eighth Schedule in the Constitution to provide that. State Constitutions are also consistent with the Federal Constitution in the ban on by-election to fill casual vacancies falling within two years of the completion of the full term of the Legislative Assemblies.

Article 71(4) provides that “If at any time the Constitution of any State does not contain the provisions set out in Part I of the Eighth Schedule‚Ķ. Parliament may….by law make provisions forgiving effect in that State to the essential provisions or for removing the inconsistent provisions.”

Firstly, it should be noted that, an amendment of the Eighth Schedule to ban by-elections in State Assemblies falling within two years of the completion of the full term of the Assembly does not automatically extend this application to the State Assemblies.

It is clearly envisaged under Article 71(4) that the State Assemblies should be given an opportunity to bring their State Constitutions in line with the Eighth Schedule by way of amendments to the State Constitution.

It is only when the State Assemblies refused or failed to amend their respective State Constitutions to be consistent with the Eighth Schedule, that “Parliament may …by law make provisions for giving effect in that State to the essential provisions or for removing the inconsistent provisions,”
This means that another act of Parliamentary legislation is needed to override the refusal or failure of State Assemblies to amend the State Constitutions to bring them in line with the Eighth Schedule.

There should be a test case in the courts as to whether the a mere amendment to Eighth Schedule would ipso facto alter the all the State Constitutions.

Constitution amendment to uphold the right, of “political frogs’ jumping from party to party
Secondly, it is clear that this amendment is solely de-signed to further UMNO Sabah’s political interest, and this is why this is not a Constitution Amendment Bill but a UMNO Sabah Bill.

UMNO Sabah is so afraid of having to fight by-elections in Sabah, especially after the formation of the PBS-USNO coalition, that they want to ban all by-elections in Sabah altogether.

This amendment to the Federal Constitution is in fact to defend and uphold the right of political ‘frogs’, who jump front party to party – the latest move in the UMNO fight against anti-hopping law in Sabah against Assemblymen defecting.
It is self-evident why the Barisan Nasional Government has decided on a two-year ban on by-elections before the completion of the full term of Parliament and the State Assemblies. This is because the Sabah state general elections was held in June 1990, and such a constitution amendment, when passed, would immediately stop any by-election in Sabah.

Of course, this UMNO move could be completely nullified if the Sabah state legislative assembly is dissolved for the holding of Sabah state general elections.

Sabah Chief Minister, Datuk Joseph Pairin Kitingan has called on the PBS to get ready for general elections, and of course r the most ideal time for PBS-USNO State Government to hold general elections in Sabah would be just before the big fight in the UMNO General Assembly in early November.

Did the Federal Government discuss and secure the consent of all the States before proposing the amendment of the Eight Schedule?
Thirdly – which is most important – any amendment to Schedule Eight, to unilaterally amend State Constitutions is a grave violation of Federal-State relations as it undermines the sovereignty of State Constitutions as conferred by the Merdeka Constitution of 1957.
The Merdeka Constitution of 1957 was the result of agreement between the States and the Federal Government, and the Eighth Schedule was drawn up to require all State Constitutions to be consistent with certain essential provisions which had been agreed upon by all the States.
This is a set of essential provisions for all State Constitutions to comply and it should not be amended. Otherwise, it would render State Constitutions completely meaningless if the Federal Government, through its two-thirds majority, could amend State Constitutions at will by amending the Eighth Schedule.

In view of this, the Eighth Schedule should not be amended at all, or only with the agreement of all States. Had the Federal Government discussed and secured the consent of all States to the amendment of the Eighth Schedule?

In fact, this is an amendment with far-reaching implications on the whole basis of Federal-State relationship, which requires time for research.