The Constitution Amendment Bill 2004 to federalize water management – refer to Select Committee before a second reading vote  by Parliament  for detailed study and extensive public consultation or DAP will consider  legal challenge of its constitutionality


- at the DAP Sitiawan forum on “2004 Constitution Amendment Bill to hand over state water rights to Federal Government”

by Lim Kit Siang

(Parliament, Thursday):  In the past several years, in keeping with the country’s development, Malaysians have ascended to demands for a higher hierarchy of rights, advocating and developing the right to development, right to health, right to housing, right to environment, right to education, right to higher education, etc. 

It is most shocking that  while aiming to become a fully developed nation under  Vision 2020, the country has been retrogressing, to the extent that we are now reduced to having to articulate and defend what is one of the most elementary and fundamental human rights – the right to water. 

This is the terrible irony and dilemma presented by the Constitution Amendment Bill 2004 which is to be rammed through the Dewan Rakyat  in a  two-day special sitting beginning on Monday.   

The Constitution Amendment Bill 2004 to amend the State List to empower the Federal Government to take over the water jurisdiction from the state governments is most improper, unparliamentary and unconstitutional for at least three reasons – the most fatal being in violation of Article 76 of the Federal Constitution which limits  the power of the Federal Government and Parliament to trespass and transgress on  powers and prerogatives of state governments and state legislative assemblies.

Article 76(1) of the Federal Constitution stipulates three circumstances where Parliamernt can amend the State List in Schedule Nine of the Federal Constitution, viz:

“ 76(1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:

(a) for the purpose of implementing any treaty, agreement or convention
between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or
(b) For the purpose of promoting uniformity of the laws of two or more States; or
(c) If so requested by the Legislative Assembly of any State.”

As the provisions of Article 76(1) (a) and (b) do not apply here, the question is whether Article 76(1)(c) has been complied with, i.e. whether any State Assembly in Peninsula Malaysia had requested Parliament  for the amendment to the State List to  surrender the state’s sole prerogative powers on water to the Federal Government and to allow the management of water resources to be federalized. 

The Perak and Penang State Legislative Assemblies have not met to surrender their sole prerogative powers on water or requested Parliament to amend the State List to federalize water management, and as far as   I know, no other  State Assembly in Peninsula Malaysia whether under Barisan Nasional or PAS  had  requested Parliament to effect any constitutional amendment to the State List empowering the Federal Government to take over the water jurisdiction from the state governments.

It is putting the cart before the horse for Parliament to proceed with the Constitution Amendment Bill 2004 without first being requested by the State Legislative Assemblies -  which is clearly unconstitutional as it violates Article 76(1) of the Federal Constitution.

The Attorney-General, Tan Sri Gani Patail, should advise the Prime Minister that the Constitution Amendment Bill 2004 to amend the State List should not be proceeded with at the special parliamentary sitting next week, unless and until Article 76(1)© had been complied with and there had been requests  for such constitutional amendment first emanating from the State Legislative Assemblies.  

The DAP Perak State Assemblymen should make their protests heard loud and clear at this violation of the constitutional prerogative and rights of the state enshrined and entrenched in the constitution, and be in the forefront to protect the Perak State Constitution and the state rights if the Barisan Nasional State Assembly representatives are not prepared to do so. 

I have asked the Perak DAP  Legal Bureau with its team of lawyers headed by Sdr. Nga Hock Cheh to study the legal implications of the Constitution Amendment Bill 2004 to unconstitutionally amend the State List and usurp the state prerogatives on water, and to study the possibility of instituting a legal challenge in the courts to protect the state’s prerogative powers. 

I am baffled as to why there is a need to convene a special sitting of Parliament for the Constitution Amendment Bill 2004 to implement the unconstitutional federalization of water resources, and why it cannot wait for two months for it to be taken up at the regular parliamentary meeting, which is scheduled to meet in two months’ time on 21st March 2004. 

This raises the question as to whether there is an ulterior agenda in the indecent haste to ram through the Constitution Amendment Bill 2004 next week.   

Malaysian water specialist, Charles Santiago, who spoke before me, has likened the water resource as “blue gold”, as privatization of water services is a multi-billion ringgit business.  The 2000 National Water Resource Study commissioned by the Economic Planning Unit of the Prime Minister’s Department (which is confined to Peninsular Malaysia) estimated that the total value of the water industry in the 50-year period between 2000 to 2050 ranges from RM51.6 billion to RM77 billion – with  an estimated amount of RM15.4 billion to be spent between 2000 and 2005. 

Could it be that there are irresistible pressures from the 2Cs – cronies and corporations - who are not prepared for any more delays to partake in the “blue gold” bonanza which would come from the full and unfettered privatization of water resources in the country? 

The Constitution Amendment Bill 2004 should be referred to a Select Committee before a  second reading vote  by Parliament  for detailed study and extensive public consultation, particularly on water privatization and the  federalization of  water management. 

There are many fundamental issues that must be addressed before decisions are  taken on water privatization and the federalization of water management, including: 

  • Whether access to water should be regarded as a public good and a human right or whether it should be transformed into a profitable market commodity through privatization, premised on affordability and not on need.
  • When opening the FOMCA public forum “Is Malaysia Ready for Privatisation of Water Resource?” on 31st July 2004, the Minister of Energy, Water and Communications   Dr. Lim Keng Yaik  spoke of a “sustainable management of water resources in order to ensure that there is enough water to cater for our social, economic and environmental needs”.  Is there adequate awareness that a prerequisite for  “sustainable management of water resources” is to have a “sustainable system of good governance” where is there accountability, transparency, the government’s respect of the right to know of the citizenry, effective checks-and-balance to prevent corruption and abuses of power?
  • Keng Yaik said he proposed to  emulate Britain  to have greater participation by consumers in the water industry by establishing a Water Forum similar to the Water Voice in the UK – but he seems to understand only  the form but not the substance of involvement and participation in the decision-making process by all stakeholders, which is why the Constitution Amendment Bill 2004, conceived as the first step in water privatization and federalization of water management, had been sprung on the NGOs, civil society and water consumers without any prior consultation whatsoever.
  • Keng Yaik has spoken of “formulating a blueprint to implement the government’s decision to federalize the water management, revamping the water services industry structure for it to become more sustainable and the setting up of a National Water Services Commission to act as a regulator”.  Why has this blueprint not been made public before the presentation of the Constitution Amendment Bill 2004 to Parliament?  Is Keng Yaik prepared to table this Water Blueprint to Parliament before the debate on the Constitution Amendment  Bill 2004 on Monday?


* Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman