Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjung, Lim Kit Siang, in the Dewan Rakyat on Monday, May 9, 1994 on the 1994 Constitution Amendment Bill
Ministers and Deputy Ministers should have a Code of Ethics to ensure their efficiency, accountability and integrity
Seventeen years ago, in a survey of the process of constitutional change in Malaysia in the book “The Constitution of Malaysia: Its Development: 1957-1977” which was co-edited by Tun Mohamed Suffian, H. P. Lee and F.A. Trindade, H. P. Lee said that “a predominant characteristic of the process of constitutional change (in the last two decades in Malaysia) is the lack of notice given for mature deliberation of constitutional change.”
Twenty-five years ago, the-following caustic criticisms were made about constitutional changes and Parliamentary meetings:
“In the main, Parliamentary sittings were regarded as pleasant formality which afforded members opportunities to be heard and quoted, but which would have absolutely no effect on the course of the Government. The general feeling was that whether or not Parliament sat, the Government would carry on. The sittings were a concession to a superfluous democratic practice. Its main value lay in the opportunity to flaunt Government strength. Off and on, this strength was used to change the constitution. The manner, the frequency and the trivial reasons for altering the constitu¬tion reduced this supreme law of the nation to a useless scrap of paper.”
This is of course Dr. Mahathir Mohamed’s The Malay Dilemma which was banned for 121 years in the country until he became Prime Minister in 1981.
However, although we are now in 1994, the criticisms of “lack of notice for mature deliberation of constitutional change” and the “reduction of the supreme law of the nation to a useless scrap of paper” remain valid.
I will not be surprised if we are reaching a stage where the constitutional amendments made under the Dr. Mahathir would have surpassed the combined constitutional amendments made under the previous three Prime Ministers!
This is why Bar Council has objected, and very right¬ly, to the lack of time given to it and the country to study the new proposals on constitutional amendments.
The 1994 Constitution Amendment Bill was only tabled last Thursday. It is clearly unfair for the Government to expect Parliament to pass it without giving adequate notice for MPs not only to study the Bill, but also to get feedback from the public and interested organisations and individuals.
The present batch of constitutional amendments were approved by the Cabinet in March, and there is no reason why the Government could not give both Parliament and the country greater notice to study their implications.
Have Malaysians accepted corruption a Malaysian political culture?
¬The present batch of constitutional amendments is significant because this is the first constitutional, amendment bill to be presented in Parliament by the Deputy Prime Minister, Datuk Seri Anwar Ibrahim.
Malaysians would have expected the first batch of constitutional amendments by Anwar Ibrahim to reflect his political concerns and ideals which had inspired him to public life from his ABIM days, particularly on the great issue of integrity in public life and the battle against corruption and all forms of abuses of power.
The 1994 Constitution Amendment Bill provides for a code of ethics for judges and that any breach of the code of ethics would be a ground for the removal of a judge from office.
But what about a Code of Ethics for Ministers, Deputy Minister and holders of public office to ensure their efficiency, accountability and integrity?
In Taiwan, South Korea and Japan, there is a sustained attack on the culture of corruption, but in Malaysia, we seem to have accepted the culture of corruption as part of our public and political ethos and life.
Recently, one news-magazine carried the following report on the attack on money politics and vote-buying in Taiwan:
“Until recently few local faction chiefs would have dreamed such a crackdown was conceivable. For decades, their standing with party leaders in Taipei has allowed them to build powerful fiefdoms and amass personal fortunes. Now, however, the rules of the game have charged. Courts, which until last year shunned vote-buying cases – are showing signs of independence. The news media are evolving from lapdogs to watchdogs.”
However, the rules of the game in Malaysia have not changed despite the high hopes of the people when Anwar Ibrahim became Deputy Prime Minister as evidenced by the recent Sabah state general elections, when Sabah was awash with the most unprecedented politics of money!
If the rules of the game in Malaysia had also changed, with a new resolve to combat corruption and the politics of money, there would be among the proposed constitutional amendments today a provision to elevate the Anti-Corruption Agency into an autonomous body answerable only to Parliament with increased powers to fight corruption in high political places.
There would also be a proposal for a Code of Ethics for Ministers and Deputy Ministers to ensure not only their accountability and integrity, but their efficiency including their competence in Parliament.
The complaint by Dr. Mahathir in the Malay Dilemma that “The general feeling was that whether or not Parliament sat, the Government would carry on” is reflected by the total lack of seriousness of Ministers and Deputy Ministers about their parliamentary duties.
Ministers and Deputy Ministers should take their parliamentary duties seriously and do their homework before they speak in Parliament
Most Ministers, except for a few, absent themselves from Parliament while Deputy Ministers do not take their parlia¬mentary duties seriousness.
Ministers and Deputy Ministers should do their homework and be serious with their replies in Parliament for what they say represent government policy and stand.
I will give one example from last week’s Dewan Rakyat, where the Deputy Minister of International Trade and Industry, Chua Jui Meng, during question time on Thursday contradicted what he had said a day earlier during the winding up of his Ministry’s supplementary estimates on the imposition of APs since April 7 for local manufacturers to import Polyethylene (PE) plastic resins.
During the debate on the supplementary estimates in the Dewan Rakyat on Tuesday, I had raised the problems faced by plastics manufacturers after the Finance Ministry had virtually banned the import of plastic resins – PE and PP – by over a thousand Malaysian plastics manufacturers.
I had questioned why MITI had created a crisis in tie local plastics industry by conferring a virtual monopoly worth RM540 million for Syarikat Titan Polyethylene (M) Sdn. Bhd. as it is the only local PE producer, and no local plastic manufacturer could get an AP from MITI to import PE unless it could get a ‘No Objection Letter’ – NOL – from Titan first.
On the objections by plastic manufacturers that they have to get NOL from Titan before they could get APs from MITI, this was Chua Jui Meng’s reply in Parliament on Wednesday:
“Kita pun melaksanakan beberapa langkah iaitu bila satu pengilang plastik di Malaysia hendak import resin plastik dari luar, dia perlu tulis kepada TITAN untuk minta TITAN sama ada dia ada kebolehan untuk mengedarkan resin itu kepada kilang plastik. Kalau dalam 5 hari dia tidak dapat memberi satu jawapan, maka kita akan terus mengeluarkan AP kepada fabricated plastic plant. Dari¬pada anggapan MITI, itu satu sistem yang adil, yang ‘hold the balance’ antara TITAN dengan penge¬luar-pengeluar plastik di negara kita.”
However, less than 24 hours later, during question time on the same subject on Thursday, Chua Jui Meng contradicted what he had said the day before, virtually repudiating his announcement that MITI had such a five-day rule.
I had in my supplementary question said that nobody in the plastics industry knew about the five-day rule that MITI would issue APs to local plastic manufacturers to import PE resins if there is no reply from TITAN on NOL in five days as there had been cases where plastic manufacturers are still waiting for a reply from TITAN after applying for NOL for ten days.
During question time on Thursday, Chua Jui Meng reiter¬ated that FTZ and LMW plastic manufacturers would automatically be issued with APs to import PE plastic resins, but again, this is unknown not only to the plastics industry but also to MITI officials themselves!
Ministers and Deputy Ministers cannot inspire Parlia¬mentary and public confidence if by their confused and contradic¬tory statements, they show that they are not really concerned about problems created by the government, as in this case, the crisis faced by the local plastics industry as a result of the imposition of AP for the import of PE plastic resins as the sole PE ~manufacturer, Titan, cannot produce the plastic resins with the quality and pricing which are competitive with the world market.
DAP calls for postponement of consideration of the Constitution Amendment Bill to re-establish the principle that constitutional amendments affecting the judicial and legal system should only be made after fullest consultation with the Bar Council
The main proposals of the present Constitution Amend¬ment Bill affecting the judicial system are:
• the reinstatement of the three-tier judicial system with the establishment of a Court of Ap-peal;
• The re-naming of the principal judicial officers and courts, as substituting the references to the Supreme Court, the Lord President of the Supreme Court, the Chief Justice of a High Court and the High Court in Borneo with the reference to the Federal Court, the Chief Justice of the Federal Court, the Chief Judge of a High Court and the High Court in Sabah and Sarawak respectively;
• the prescription of a Code of Ethics for judges, where any breach of its provisions would be ground for the removal of a judge from office.
Since the abolition of the appeals to the Prii7y Council, DAP has bean calling for the re-establishment of a three-tier judicial system.
For this reason, while the DAP welcomes the proposed establishment of a Court of Appeal, the DAP, calls for a postpone¬ment of the consideration of the 1994 Constitution Amendment Bill to re-establish the principle that constitutional amendments affecting the judicial and legal system should only be made after the fullest consultation with the Bar Council.
It is clear that the Bar Council had been kept in the about the proposed constitutional amendments to the judicial system and that they had only read about them in the newspapers alter the Bill had been tabled in the Dewan Rakyat last Thursday.
This is most unsatisfactory and proof of the continued aftermath of the greatest judicial crisis in Malaysian history six years ago, which led to the removal of Tun Salleh Abas as Lord President and the sacking of two supreme court judges.
The Government can only restore public confidence , and in particular the Malaysian Bar, in the independence of the judiciary, if it fully respects widespread public concerns about the principle of the independence of the judiciary instead of continuing to adopt a confrontationist attitude towards the Malaysian Bar, regarding it as an enemy or threat to the Govern¬ment.
The Government should make overtures to the Bar Coun¬cil confidence to jointly consider ways and means to restore public confidence, and in particular the confidence of the Malaysian Bar, in the independence of the judiciary.
Recently, in the spat between the Prime, Minister, Datuk Seri Dr. Mahathir Mohamad and the London Sunday Times over the British newspaper allegation over bribery payments, Mahathir said he would not institute legal actions in the United Kingdom because he has no confidence in the British court.
Last week, the Government tabled in Parliament the US250 million Loan Agreement entered into by Lembaga Lebuhraya Malaysia with Sumitomo Bank, Limited (Labuan Branch), which was guaranteed by the Government of Malaysia on 19th January 1994. Clause 32 of the Agreement on ‘Governing Law and Jurisdiction’ said:
“(A) Governing Law: This Agreement shall be governed by and construed in accordance with the laws of England.”
The agreement also provided that all parties “irrevocably agree that the courts of England are to have jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and/or the Guarantee”, although LLM also agreed that any proceedings may be brought in the courts of Malaysia.
When the Malaysian Government, whether as a direct party or as a Guarantor, enters into international agreements where the governing law would be the laws of England under the jurisdiction of English courts, how can the Prime Minister or the Government claim that they have no confidence in the English courts of justice?
Code of Ethics for Judges should be approved by Parliament
Under the Constitution Amendment Bill, the Yang di-Pertuan Agong is empowered to prescribe a code of ethics to be observed by judges. Any breach of any provision of such code will be a ground for the removal of a judge from office.
I have given notice that I will move an amendment during Committee stage that such a Code of Ethics should be approved by Parliament before it crimes into force.
If the code of ethics for judges is prescribed by the Yang di Pertuan Agong on the recommendation of the Chief justice, the President of the Court of Appeal and the Chief Judge of the High Courts, then there is no need for Parliament to be involved.
However, as the amendment stands, the code of ethics, could only be prescribed by the Yang di Pertuan Agong after consultation with the Prime Minister. As the powers of the Prime Minister are derived from the principle of parliamentary democracy, it is therefore most appropriate that Parliamentary approval should be given before the prescription of such a code of ethics for judges.
Has the consent of the Conference of Rulers been given to the amendment to Article 66 on Deemed Royal Assent
Clause 8 of this Bill seeks to amend Article 66 of the Constitution to replace the provisions of Clauses (4) and (4A).
The existing provisions in Clause (4) and (4A) stipulate a proce¬dure whereby the Yang di Pertuan Agong after a Bill is presented to him for assent could within thirty days return the Bill to the House in which it originated in order for the Bill to be reconsidered by both Houses of Parliament and then presented again to the Yang di Pertuan Agang. The substituted Clauses (4) and (4A) instead provide that the Yang di Pertuan Agong has to assent to a Bill within a period of thirty ,days after it is presented to him him. If he does not do so, the Bill will become law upon the expiration of that period as if he had assented to it.
The first question I wish to ask is whether the consent of the Conference of Rulers has been given for this amendment.
This is because Article 38(4) of the Federal Constitution stipulates:
“No law directly affecting the privileges, posi¬tion, honours or dignities of the Rulers shall be passed without the consent of the Conference of the Rulers.”
Parliament has in fact covered this ground ten years ago, during the 1983 Constitutional Crisis, when the government first introduced legislation 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 to have assented to the Bill and the Bill `shall accordingly become law.
I had stressed during the the debate an the 1983 Constitutional Amendment Bill on August 2, 1983 that 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 law. Without the Royal Assent, a Bill that has been passed by the two Houses of Parliament has not yet become law.
The 1983 Constitutional Amendment Bill, which also provided for a fundamental shift of constitutional powers in vesting the full powers of proclamation of Emergency in the Prime Minister instead of in the Yang di Pertuan Agong, blew up into a full-scale constitutional crisis with the UMNO leaders led by the Prime Minister holding illegal rallies up and down-the country.
The compromise that was reached in the 1984 Constitution Amendment Bill was the abandonment of the Emergency Proclamation powers by the Prime Minister, and the amendment of the 15-day Deemed Royal Assent Rule with the present arrangement – i.e. if the Bill does not get the Royal Assent from the Yang di Pertuan Agong within thirty days after it is presented to him, and is returned the House in which it had originated; it would be become law on the expiry of 30 days after it had been re-presented to the Yang di Pertuan Agong.
The DAP had objected to the new amendments embodied in Article 66 as it derogated from the principle of parliamentary supremacy and constitutional monarchy whereby the constitutional monarch has no ‘constitutional will’ of his own to delay or influence Parliament in the legislative process, but merely to perfect the legislative process by giving his Royal Assent as advised by the Cabinet.
However, as Parliament through the Constitution Amend¬ment Act 1984 had given the constitutional monarch ‘a constitu¬tional will of his own’ in the past ten years to withhold Royal Assent, the question is whether the Conference of Rulers have given its consent to the abolition of this power by the present Constitution amendment bill, and the reason why no notice has been given for this proposed amendment to the country.
I hope the Government would agree to defer passage of the Constitution Amendment Bill to give all sections of opinion in the country ample opportunity to give their views, which is not only an important democratic process by itself, but to set the precedent for the fullest national debate and deliberation before important legislative and constitutional amendments are presented before Parliament.