It is the only state which has not formed a State Executive Council 16 days after the Nov. 29, 1999 general election, because of the power tussle between MCA and Gerakan, with the former demanding the second Deputy Chief Minister’s post.
Penang is also going to be the first state in the country to violate its state constitution when the State Assembly is convened unconstitutionally on Saturday for the swearing-in of the 33 new State Assembly members as well as when it meets on Monday to pass the state budget for next year.
First, let me deal with the Gerakan/MCA political tug-of-war. When the "two Lims", Lim Boo Chang and Lim Chien Aun, resigned from Gerakan, the Gerakan President, Datuk Lim Keng Yaik denounced them as traitors and turn-coats. But when MCA, which has nine Assembly members as compared to Gerakan’s eight with the loss of the two Lims, demanded for the second Deputy Chief Minister’s post and an additional Exco, Keng Yaik did an about-turn.
In typically Keng Yaik’s crude and vulgar vocabulary, the Gerakan
President said:
What type of a political leadership and political principle is this, involving eating of words, taking off pants and going down on one’s knees?
MCA’s demand for a second Deputy Chief Minister’s post and an additional Exco as "reward" for its general election performance is also most baffling, for based on the same argument, the MCA should be asking for the Deputy Mentri Besar’s post in Selangor as a reward after UMNO lost four State Assembly seats in the state, four to PAS and one to KeADILan.
But when the post of Deputy Mentri Besar of Selangor was created, it did not go to MCA as a reward for winning two additional State Assembly seats from the DAP but was given to UMNO, which lost five state assembly seats.
This is the best proof that MCA can be angry, tough and unreasonable with Gerakan but it would not dare to do the same thing with UMNO.
This is most ominous, for it means that neither the MCA nor Gerakan
can be expected to stand up against UMNO in defense of the rights of Malaysians
to justice, freedom, democracy and good governance, which is particularly
critical for Malaysia for the next five years as the DAP, which had
traditionally been playing this role, would not be as effective as
in the past as a result of the marginalisation of DAP in Parliament and
Malaysian politics in the recent general election.
However, what is most astounding in the past two weeks is the utter contempt shown by Tsu Koon for the Penang State Constitution.
On 8th December, 1999, all the 33 Penang State Assemblymen were notified that a Penang State Assembly meeting would be held on Saturday, 18th December 1999 for them to take their oath of office and that the Assembly would begin meeting on Monday, December 20 1999, to deal with government business, including the passage of next year’s budget
The Penang State Assembly meetings on Saturday and Monday are unconstitutional and unlawful as the Yang di Pertua Negeri had acted against the Penang constitution in summoning the Penang State Assembly meetings without abiding by the provisions of the constitution.
Article 19 (1) of the Penang Constitution vests power on the Yang
di Pertua Negeri to summon the Penang Legislative Assembly, but Article
8 of the Constitution provides that in exercising his functions,
the Yang di Pertua Negeri shall act in accordance with the advice of the
State Executive Council, except for two specific matters where he "may
act in his discretion", namely:
The Yang di Pertua Negeri has no "discretion" but must act on State Exco advice on the summoning of the Assembly. However, as the Penang State Exco has not yet been formed as a result of the Gerakan-MCA crisis, there could therefore be no State Exco advice to the Yang di Pertua Negeri to summon the Legislative Assembly to meet on Sunday and Monday by way of a proclamation.
Tsu Koon had advised the Yang di Pertua Negeri to summon the State Assembly meetings on Saturday and Monday, resulting in the State Assembly notification dated December 8 to all State Assembly members, but as Tsu Koon is only Chief Minister and cannot represent the State Exco, the Yang di Pertua Negeri’s summoning of the State Assembly is unconstitutional, null and void.
The State Assembly meetings fixed for Saturday and Monday should be cancelled as they are unconstitutional and unlawful. New dates for State Assembly meetings should only be decided after the first meeting of the State Exco and not before the State Exco was even formed!
It is still possible for the Penang State Assembly to be convened on Saturday for the swearing in of the 33 new State Assembly members, provided all the following seven actions could be done in the next three days by Friday itself:
1. the formation of the State Exco;
2. the swearing in of the State Exco members;
3. the holding of the first State Exco meeting deciding that the
Assembly be convened on Saturday for the swearing-in of new State Assembly
members;
4. the Yang di Pertua Negeri formally advised of the State Exco
decision;
5. the Yang di Pertua Negeri acting under Article 18(1) to
summon the
Assembly to meet on Saturday by way of proclamation;
6. The State Assembly sending out a notification to all Assembly
members following the Yang di Pertua Negeri’s proclamation informing them
of Saturday’s Assembly meeting.
7. All assembly members receiving the notification.
Even if all the above seven actions could be done by Friday itself, to allow for the Assembly to be convened on Saturday for the swearing-in of the 33 new State Assembly members, it is unconstitutional for the State Assembly to be convened on Monday to pass the 2000 budget for the Penang State.
If the unconstitutional summoning of the Assembly on Saturday in the notification to Assembly members dated 8th December 1999 (before the formation of the State Exco) is persisted with, the swearing-in of the 33 new State Assembly members will be unlawful, null and void and of no effect.
Under Article 21 (1) of the Penang State Constitution, an Assembly member must take his oath of office before he could take his seat in the State Assembly although there is a special proviso for a member to take part in the election of the Speaker of the Assembly before taking the oath.
Article 21(2) provides that the seat of an Assembly member shall become vacant if the Assembly member did not take his oath within three months of the first State Assembly meeting.
If the State Assembly’s meeting on Saturday is not regularised to make it lawful in accordance with the provisions of the Constitution, then the 33 new Assembly members who took an illegal oath of office run the risk of being challenged in court for having vacated their state assembly seats as they had failed to take their oath of office within three months after the first meeting of the State Assembly and thus deemed to have vacated their seats, resulting in a whole series of by-elections in the state.
(14/12/99)