Constitutional  case of the millennium -  questioning  the legality of all the bills and businesses by the new tenth Parliament as well as the legality of the Ministers and MPs  arising from the unlawful oath-taking on Monday


Media Statement
by Lim Kit Siang
 

(Petaling Jaya,  Wednesday): A legal action to challenge the legality and constitutionality of the convening of Parliament on Monday will become  the constitutional  case of the millennium as it will affect the legality of all the bills and businesses by the new tenth Parliament, not only in the current four-day meeting, but for all future meetings as well as the legality of the Ministers and MPs arising from the unlawful oath-taking two days ago.

This is because all laws passed by Parliament convened not in accordance with the Constitution are null and void, and every law enacted by such an unconstitutionally-convened Parliament is open to legal challenge as to its  legality, whether now, a year or even five years later.

It is the height of irresponsibility for the law officers in the land, particularly the Attorney-General, Tan Sri Mohtar Abdullah, to allow the Barisan Nasional government to plunge the country into such a constitutional chasm placing at risk the legality of all laws and motions passed by the tenth Parliament as well as the legality of the Ministers and MPs.

Article 59(2) of the Malaysian Constitution envisions that the seat of an MP who does not take his oath of office within six months "from the date on which the House first sits after his election" would become vacant  where a by-election would have to be held to fill the vacancy.

If the oath-taking by the MPs in an unconstitutionally-convened Parliament is null and void, then we are looking at the prospect of all Ministers and MPs having not taking their proper oath of office, developing into a situation where all their  parliamentary seats would be deemed vacant with by-elections having to be held for all the seats!

I call on Mohtar Abdullah to explain whether he  had been asked to advise on whether a caretaker Prime Minister can constitutionally  usurp the powers of the yet-to-be-formed Cabinet  after a general election had been held and to advise the Yang di Pertuan Agong to summon the first meeting of the newly-elected tenth Parliament and if he had endorsed this course of action, to make public his reasons, together with legal and constitutional precedents from other countries  to justify a caretaker Prime Minister  overstepping his  proper limits and bounds by acting as if he is the Prime Minister as in other times.

A caretaker government in a parliamentary democracy merely performs the rudimentary duties of the state in between the period from the dissolution of Parliament to the establishment of a new Cabinet.  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.

It has been argued that  Parliament is the  master of its own house and it could legalise all irregularities or even illegalities committed by Parliament, as no court would question how Parliament conduct or  regulate its own affairs.

This may be so.  But this is not the issue here, which 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 the  newly-elected  Parliament.

If it is a violation of the Malaysian constitutional law and principles for a caretaker Prime Minister to usurp the powers of a yet-to-be-formed Cabinet to advise the Yang di Pertuan Agong to summon the first meeting of the newly-elected Parliament,  Parliament cannot rectify  this  unconstitutional act as it is committed outside Parliament and has nothing to do with Parliamentary prerogative to regulate its own affairs however irregular or illegal.

In the last general election, as a result of the Barisan Nasional making it the dirtiest  election in the nationís history, the Barisan Alternative failed to smash the Barisan Nasionalís political hegemony and two-thirds parliamentary majority.

As a result, there is an over-mighty Prime Minister (with an emasculated Executive) who can only be checked by a robust Parliament and an independent judiciary, or there would be more statutory rapes of the Constitution and Parliamentary Standing Orders as happened on Monday.

As the constitutional case of the millennium challenging the legality and constitutionality of the convening of the tenth  Parliament on Monday (20th December 1999)  would have the most far-reaching implications and repercussions in  any  single legal action in the nationís history, DAP will approach this subject with unprecedented caution and deliberation.

Apart from studies by DAP lawyers on this case, I will initiate the widest range of consultation ever conducted in Malaysian history before a final decision is taken on the filing of the constitutional case of the millennium.

Among the groups to be consulted are:
 

 
This unprecedented process of consultation on the constitutional case of the millennium should begin immediately after the New Year holidays.

(22/12/99)


*Lim Kit Siang - DAP National Chairman