Article 19 (1) of the Penang State Constitution vests powers on the Yang di-Pertua Negeri Pulau Pinang to summon the Penang State Assembly, but Article 8 provides that apart from two specific instances, the Yang di-Pertua Negeri in the exercise of his functions shall act in accordance with the advice of the State Executive Council.
Article 8 of the Penang State Constitution reads:
(2) The Yang di-Pertua Negeri shall act in his discretion in the performance of the following functions, that is to say, -
(a)the appointment of a Chief Minister; and
(b)the withholding of consent to a request for the dissolution of the Legislative Assembly."
The Constitution is therefore very clear that in exercising his powers under Article 19(1) to summon the Legislative Assembly, the Yang di-Pertua Negeri must act on the advice of the State Executive Council.
In the case of the Penang State Government, the Penang State Executive Council was the last in Peninsula Malaysia to be formed after the Nov. 29, 1999 general election because of the political crisis among the Barisan Nasional component parties over MCA’s demand for the post of a second Deputy Chief Minister and additional State Exco allocations.
The ten State Executive Councillors were only sworn in before the Penang Yang di-Pertua Negeri Tun Dr Hamdan Sheikh Tahir at Seri Mutiara on Thursday, December 16, 1999. The swearing-in of the new Exco was immediately followed by the holding of its first meeting at Komtar at 11.30am an hour later.
However, on 8th December, 1999, all the newly-elected Penang State Assemblymen had received notification by the Penang State Assembly informing them that the Yang di Pertua Negeri had issued a proclamation summoning the State Assembly to meet from December 18, 1999.
This proclamation by the Yang di-Pertua Negeri and the State Assembly notification dated 8th December 1999 informing State Assembly members of the summoning of the State Assembly on December 18, 1999 contravened the State Constitution as no State Executive Council had been formed yet to advise the Yang di Pertua Negeri to exercise his powers under Article 19 (1) of the Constitution.
If the Penang State Assembly had been convened not in accordance with the provisions of the State Constitution, then all the bills and motions passed by the Penang State Assembly, whether in the December meeting or in future State Assembly meetings for the next five years, would be infected with illegality and unconstitutionality - and are null and void.
It would also mean that Datuk Yahaya Abdul Hamid had been illegally
elected Speaker of the Penang State Assembly.