All laws passed by Parliament convened not in accordance with the Constitution are null and void and DAP will consider the legal implications of such a statutory rape of the Constitution and the possibility of legal action


Media Conference Statement
by Lim Kit Siang
 

(Petaling Jaya,  Tuesday):  I am very flattered that the fifth-term Prime Minister, Datuk Seri Dr. Mahathir Mohamad sees my influence in Parliament everywhere although I am no more a MP and Parliamentary Opposition Leader.

Mahathir accused me as being the "mastermind" and "puppet master pulling strings" in Parliament.  If Mahathir is right, then I am now even more powerful after being booted out of Parliament  in the dirtiest general election in the nation's history than at any time during my 30 years as MP and 25 years as Parliamentary Opposition Leader.

Mahathir does not do himself enough credit.  The pandemonium which started the new tenth Parliament yesterday was completely his own making in flaunting the Barisan Nasional political hegemony by using its new  three-quarters parliamentary majority to  compel the new Parliament to commit the statutory rape of the Malaysian Constitution as its very first act!

Mahathir wants to create the  impression that I am some shady conspirator, working in subterranean and other devious ways to "instigate" chaos in  Parliament.  He cannot be more wrong. He  should know that in my 33 years in politics, I have always operated openly and publicly and never had any clandestine operations.

For six consecutive days after  I received information that Parliament was being summoned to meet on December 20, 1999, I had warned  that it was being convened not in accordance with the Constitution and that  to persist in such an unconstitutionally-convened Parliament would be to show utter contempt for the Yang di Pertuan Agong, Parliament and the Constitution.

The facts are very simple and straightforward.  Article 55 of the Constitution vests power on the Yang di Pertuan Agong to summon Parliament, but Article 40 provides that in exercising his functions, the Yang di Pertuan Agong shall act in accordance with the advice of the Cabinet, except for three specific matters where he "may act in his discretion" which do not apply here.

The new Cabinet Ministers were only sworn in on December 14, 1999 and the first Cabinet meeting held on December 15, 1999.

On 9th December, 1999  the Yang di Pertuan Agong issued a proclamation summoning Parliament to hold its first meeting on  Dec. 20, 1999 and on 13th December, 1999, the Setiausaha  Parliamen Datuk Mohd. Salleh bin Haji Hassan  sent out the notice of meeting to all the 193 new MPs informing them of the first meeting of Parliament on December 20 -  both events preceded the first Cabinet meeting of December 15, 1999,  which is  the earliest date the new Cabinet could have decided on the first meeting of the new Parliament.

Under the circumstances, it is clear that  the royal proclamation of Dec. 9 and the parliamentary notice of Dec. 13, being made before the first Cabinet meeting of Dec. 15,  are null and void as not being in accordance with the Constitution.

The Dec. 20, 1999 Parliamentary meeting suffers not only from the ab initio fatality of not having been convened in accordance with the provisions of the Constitution, it is also in blatant disregard of  parliamentary standing orders on two grounds:  firstly,  Dewan Rakyat Standing Order (4) requiring at least 14 daysí written notice for any nomination for the post of Speaker to be elected at the first meeting of Parliament, which means notice of more than two weeks must be given to all MPs; and secondly, Standing Order (1) that the business of the first meeting of Parliament can only be confined to the election of the new Speaker and the swearing-in of the new MPs after which "the house shall stand adjorned" until summoned on "the date and time" fixed by the Yang di Pertuan Agong.

As a result, there had been multiple usurpation of powers in unconstitutionally  convening the first meeting of  Parliament yesterday:
 

The explanations given by Mahathir and the Speaker, Tun Mohamed Zahir Ismail to justify the legality of the Parliamentary meeting yesterday do not hold water. Several important  issues raised are:

(1) Can a caretaker government constitutionally usurp the powers of the new Cabinet

Mahathir's claim that his  status as the Prime Minister in the interim or caretaker
government allowed him to advise the Yang di Pertuan Agong on the summoning of the first meeting of the new Parliament is absurd and outrageous, going against all principles of democratic and constitutional  governance.

Mahathir said:
 

Dr Mahathir said if such rights were not vested in him "then the  caretaker government would be meaningless".

He cited as an example India where the "caretaker government"  functioned for six months and many decisions were made during  that period.  He later told reporters:  "They say I have got no power, but when there is war, I have the power to act."

I challenge Mahathir to just give one instance in any other country where the caretaker Prime Minister had usurped the powers of the new Cabinet  which had yet to be formed by advising the King to summon the first meeting of the new Parliament, and I am sure he cannot do so.

Mahathir is presenting a most pernicious and undemocratic  doctrine that a caretaker government has all the functions and powers of an ordinary government as a caretaker government in a parliamentary democracy merely performs the rudimentary duties of the state.  Apart from maintaining law and order, it ensures that government machinery continues to function so that the day-to-day task of administration can be carried out.

A responsible caretaker government cannot initiate new programmes or launch new projects let alone take new policy decisions in the name of the government or it will be trespassing on the powers and duties of the new government to be formed.

Mahathir used the extreme example that if there is war, the caretaker government has the power to act. I agree, but this will be in the context of performing the rudimentary duties of the state as protecting the security of the nation during a war declared by a foreign country, but certainly, a caretaker Prime Minister or government has no powers to declare war on another state!

Mahathir is wrong when he claimed that the Prime Minister in a caretaker government has the same role and power as the Prime Minister at other times.

Can Mahathir state how many times the caretaker Cabinet had met since the dissolution of Parliament on Nov. 11, 1999, the dates and the decisions taken at these meetings or had there  been no caretaker Cabinet meeting at all?  If this is the case, then there is only caretaker Prime Minister but with no caretaker Cabinet although all the Ministers continue to be paid Ministerial salaries and allowances as caretaker Ministers - which will be another caretaker scandal.

As  the Prime Minister in a caretaker government cannot have the same role and power as the Prime Minister at other times,  the caretaker government cannot constitutionally usurp the powers of the new Cabinet to advise the Yang di Pertuan Agong on the first meeting of the newly-elected Parliament.

(2) Would the government grind to a halt without a single sen to pay salaries, including MPsí allowances, without Parliament meeting yesterday?

Mahathir's accused the opposition of  trying to disrupt the administration of the country, that  his government was behind time on the budget  and the opposition was only complicating matters. "If we don't  get this budget approved, we can't even pay the salaries of  MPs."

Mahathirís accusation is completely baseless and unfounded. The Barisan Alternative had offered full co-operation to pass the RM30 billion contingency finance bill to authorise government expenditures for the first half of next year until the 2000 Budget is passed so that the government would not grind to a halt on 1st January 2000 without a single sen to spend.

But this must be done without committing any statutory rape of the Constitution and Parliamentary Standing Orders.

I had in fact on Sunday made specific proposals as to how the RM30 billion contingency finance bill could be passed to authorise government expenditures for the first six months of next year, as I do not expect the 2000 Budget to be passed and become law until May or June next year.

This is my proposal in my statement on Sunday, 19th December 1999:
 

(3) Who created the  situation whereby 2000 Budget could not be passed this year and a contingency finance bill had to be rushed to Parliament for emergency passage in the last few days of the year?

This deplorable  state of affairs, where the 2000 Budget could not be passed this year, was the  sole handiwork of Dr. Mahathir, for two reasons:

(i)  Firstly, because he wanted to conduct the dirtiest general election in the nationís history to retain Barisan Nasional political hegemony and two-thirds parliamentary majority, a centreplank of which is to disenfranchise  680,000 new voters mostly from the young generation from exercising their constitutional right to vote  in the tenth national general election.  These new voters would have the right to vote when the new electoral roll is completed in January after the longest votersí revision exercise. Mahathirís solution was to dissolve the  ninth Parliament in mid-session and mid-debate on the 2,000 budget when there was no constitutional or political crisis to justify such a dissolution - creating the present parliamentary and budgetary messes.

(ii)  Secondly, Prime Ministerial neglect and irresponsibility.  After acting irresponsibly in dissolving Parliament in mid-session and mid-debate of the 2000 Budget, Mahathir should have realised the urgency of forming the Cabinet at the earliest opportunity so as to convene the first meeting of newly-elected Parliament at the first available date  so that a contingency finance bill could be approved to authorise government expenditures for next year.  Mahathir should have formed his Cabinet immediately after the Nov. 29, 1999 election result, had the Ministers sworn in and an immediate first Cabinet meeting held.  The first meeting of the tenth Parliament could have been held on Dec. 20 fully in accordance with the provisions of the Constitution and the Standing Orders if Mahathir had formed his Cabinet immediately after the general election without having to commit statutory rape of the Constitution and the parliamentary standing orders.

(4) Why is the Barisan Nasional government unable  to accept the Barisan Alternative proposal to convene Parliament on Dec. 29 and 30 to respect the Yang di Pertuan Agong, Constitution and  Parliament

The only reason why the  Prime Minister and the Cabinet are not prepared to accept the Barisan Alternative proposal that Parliament meet on Dec. 29, 1999  which would allow the first meeting of Parliament to be convened in accordance with the provisions of the Constitution and the Parliamentary Standing Orders, and to allow the contingency finance bill to be passed on Dec. 30, 1999, is because the Prime Minister and all the Cabinet Ministers have made arrangements for New Year holidays.  As far as the new Cabinet is concerned, the Constitution and the Parliamentary Standing Orders can be statutorily raped provided their New Year holiday plans are not spoiled!

(5) Did I instigate the walkout by the Barisan Alternative MPs

Mahathir said opposition MPs, "most of whom are new", would  not have touched on the legality of Parliament being convened not in accordance with the provisions of the Constitution  if I had not raised it.

"But it seems to us that Lim Kit Siang is still pulling strings to  ensure that the opposition would dance to his tune.   I regret very much that other people can play the role of a   puppet master in this House. This does not augur well for the House." He said.

Mahathir has missed the point altogether. The question is not who was the first to raise the issue of the legality of a Parliament not convened in accordance with the Constitution, but whether there is merit in the contention.

He is also insulting the intelligence and integrity of Barisan Alternative MPs thinking that just because Barisan Nasional MPs could be led by the nose by the BN leadership, turning them into Parliamentary "yes-men" and "yes-women", Barisan Alternative MPs are the same.

There was no question  of any "mastermind" or "puppet-master pulling strings".  The Barisan Alternative MPs from DAP, PAS and KeADILan had a pre-council meeting on Sunday night to discuss the new Parliament and the issue of the legality of Parliament not convened in accordance with the Constitution and the parliamentary standing orders dominated discussions.  There was general outrage and consensus that there should be a strong protest against the statutory rape of the Constitution perpetrated by the Barisan Nasional but no decision was taken for a collective walk-out by the Barisan Alternative MPs.

The collective walk-out by the BA and PBS MPs in the Dewan Rakyat yesterday morning was  the final spontaneous protest and outrage at the Barisan Nasional's arbitrary and high-handed contempt for the Constitution, Parliament and the Yang di Pertuan Agong and its refusal to listen to reason to cancel yesterday's meeting and  convene instead on Dec. 29, 1999, complying with the provisions of the Constitution and the Parliamentary Standing Orders as well as in time to approve the contingency finance bill to authorise government expenditures for the first six months of next year until approval of the 2,000 Budget.

Mahathir was being very irresponsible when he alleged that the Opposition MPs was introducing the "samseng culture" with their walkouts.

Walkouts from Parliament and State Assemblies are  legitimate forms of peaceful  protests when the governing majority abuses its power by flaunting its political hegemony.  UMNO State Assemblymen in Kelantan had  previously staged various walkouts in the PAS-led Kelantan State Assembly.  Is Mahathir now saying that those UMNO Kelantan State Assemblymen who had staged walk-outs in the Kelantan State Assembly before were "samseng" assemblymen?

In their  blatant disregard of the Constitution, Parliament and the Yang di Pertuan Agong, the Barisan Nasional Ministers and MPs must forever hold their heads in shame at the statutory rape of the Constitution as the very first act of the tenth Parliament.

Barisan Alternative MPs, led by Parliamentary Opposition Leader, Datuk Fadhil Nor, and assisted by DAP Parliamentary leader Dr. Tan Seng Giaw,  must be commended for courageously and stoutly standing up in the defence of the Constitution, Parliament and the Yang di Pertuan Agong, and I want in particular to commend new MPs who had immediately made a mark on the first day of Parliament , namely  Chong Eng (DAP-Bukit Mertajam), Fong Po Kuan  (DAP-Batu Gajah), Chow Kon Yeow (DAP -Tanjong)  Syed Azman Syed Ahmad Nawawi (PAS-Kuala  Terangganu) and Mahfuz Omar (PAS-Pokok Sena).
 
Mahathir  said the opposition  failed to show respect to Tun Mohamed Zahir Ismail who was re-elected the House  Speaker for a fifth term.

He said: "By right when the Speaker says sit, we sit. If we do not follow regulations, then it will be difficult to debate in an orderly  manner."

Mahathir said MPs who did not agree with the Speaker's  decision could bring a motion of disagreement which could then be  debated and decided by all members.

Mahathir is indulging in meaningless verbiage, as in my 30 years in Parliament, no motion by any opposition member to review the Speaker's ruling or decision had ever been allowed time for debate.  This is to illustrate that although  Zahir  is making Malaysian history as the longest-serving Speaker in his fifth term since 1982, he can lose public respect for his office very quickly if the Speaker is not seen to be fair and impartial in upholding the rights, honours, privileges and dignities of all MPs in the House, whether government or opposition.
 
Zahir  said he was surprised by the uproar caused by the opposition at  the first meeting of the 10th Parliament yesterday, which he described as  the worst in its  history.

He said Members of Parliament were not supposed to debate  before the Speaker was elected and the members were sworn in.

"They (opposition) should not have protested when Secretary to  Parliament Datuk Mohamad Salleh Hassan wanted to start the  proceedings for electing the Speaker," he told reporters outside  the House.

The Opposition MPs are not at fault in speaking up at this stage, although technically there could be no debate before the Speaker was elected and the members were sworn in.

Mahathir himself told reporters later that  "Technically speaking they are not supposed to talk in Parliament  until they take their oath".  Didn't Mahathir himself speak in Parliament yesterday before he took his oath as an MP although he is serving his eighth term as MP and should know he cannot speak in the Dewan Rakyat before being first sworn in?

If there was anyone who was at fault at this stage, it was the  Secretary to Parliament who failed to protect the privileges and traditions of Parliament in being a party  to the convening of the first meeting of  Parliament not in accordance with the provisions of the Constitution.

When statutory rapes of  the Constitution and the Parliamentary Standing Orders are being committed openly and blatantly, to complain about Opposition MPs speaking before the election of the Speaker and the oath-taking is to miss the woods for the trees!

All laws passed by Parliament convened not in accordance with the Constitution are null and void and this means all bills and businesses passed by this session of Parliament can be open to legal challenge as to their legality.

The legality of oaths taken by Members of Parliament yesterday could also be open to challenge, as the Constitution provides that a MP who did not take his oath of office and his place in Parliament within a period of six months runs the risk of his seat being declared vacant.  This also applies to all Cabinet Ministers as they would lose their qualification to be Cabinet Ministers if their parliamentary seats are declared vacant.

These are far-reaching implications of a Parliament not convened in accordance with the Constitution.  Parliament is the  master of its own house and can regulate improprieties as violations of its own Standing Orders, but Parliament cannot rectify an unconstitutional act committed outside Parliament, as convening Parliament not in accordance with the Constitution by wrong advice to the Yang di Pertuan Agong.

In the final analysis,  the constitutional principle to be decided  is whether a caretaker Prime Minister can usurp the powers of a new Cabinet which has not yet been formed to advise the Yang di Pertuan Agong to summon the first meeting of Parliament.

DAP is studying these legal implications, including the possibility of legal actions.

(21/12/99)


*Lim Kit Siang - DAP National Chairman