DAP calls for a parliamentary select committee on federalization of water management and water privatization to ensure fullest public consultation as well as respect for the federal-state constitutional relationship


on the Constitution Amendment Bill 2004
by Lim Kit Siang

(Dewan Rakyat, Monday): The Constitution Amendment Bill 2004, whose chief objective is to amend the State List to empower the Federal Government to take over the water jurisdiction from the state governments, is most improper, irregular, unparliamentary and unconstitutional for at least three reasons.

Firstly, the notice for the convening of the two-day special Parliamentary meeting sent out to all Members of Parliament dated 22nd December 2004 was signed by the Speaker, Tan Sri Ramli Ngah Talib, when it should have been signed by the Setiausaha of Parliament, as provided for under Standing Order 9(1) of the Dewan Rakyat.

Secondly, MPs were informed by the notice that the special sitting of Parliament was convened under Standing Order 11(3), which states:

“11(3) If, during the adjournment of the House, it is represented to Tuan Yang di-Pertua by the Prime Minister that the public interest requires that the House should meet at an earlier date than that to which the House was adjourned, Tuan Yang di-Pertua shall give notice thereof forthwith and the House shall meet at the time stated in such notice.”

In this, the representation by the Prime Minister for a special Parliament sitting could not have been made during the adjournment of the House after the budget meeting on December 14, 2004, as the decision to convene a special Parliament sitting for the Constitution Amendment Bill 2004 had been made and announced publicly before the adjournment of the budget meeting on December 14.

However, the most serious and fatal objection is the third reason - 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, Penang, Malacca, Negri Sembilan, Selangor and Pahang 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.

Last Thursday, I had publicly called on the Attorney-General, Tan Sri Gani Patail, to advise the Prime Minister that the Constitution Amendment Bill 2004 to amend the State List should not be proceeded with at this special parliamentary sitting 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.

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 from 21st March to April 28, 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.

Malaysian water specialist, Charles Santiago, 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, not only by the civil society but to uphold the constitutional federal-state relationship.

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 Resources?” 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 and appreciation that a prerequisite for “sustainable management of water resources” is to have a “sustainable system of good governance” where is the is accountability, transparency, government’s respect for the right to know of the citizenry, effective check-and-balance mechanisms 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?

In the past several years, in keeping with the country’s development, Malaysians have increasing 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.

But the greatest objection today is the recasting of the Federal-state constitutional relationship without complying with entrenched constitutional provisions protecting state prerogative powers. This is in fact the first time in the 47-year history of the country that such a dangerous and unconstitutional precedent is being set, which highlights the grave risks and dangers from the Barisan Nasional’s nine-tenth parliamentary majority, resulting in the weakest opposition checks-and-balances in the nation’s history.

On 29th September 2001, the then Prime Minister, Tun Dr. Mahathir Mohamad tore up the Merdeka “social contract” reached by the forefathers of the major communities on attaining independent nationhood that Malaysia is a democratic, multi-religious and secular nation with Islam as the official religion but not an Islamic State, with his unilateral; arbitrary and unconstitutional declaration that Malaysia is an Islamic State.

On March 11, 2003, the then Health Minister, Datuk Chua Jui Meng misled Parliament on the dengue epidemic in 2002, manipulated and falsified data by reporting 11,394 dengue cases and 57 dengue deaths in 2002, when in fact there were three times the number of dengue cases totally 32,767 and 99 deaths, making it the worst dengue year in the nation’s history.

Today, we are gathered in Parliament to amend the State List in the Ninth Schedule of the Federal Constitution in utter disregard of the Article 76(1)(c) which limits the power of the Federal Government and Parliament to trespass and transgress on prerogative powers of state governments – whether water jurisdiction or heritage - without first getting the consent of the State Legislative Assemblies by way of request to Parliament for any constitutional amendment to the State List.

These are very unhealthy and undesirable precedents and trends, all pointing to one common message – that the government cannot be trusted, when it is not prepared to honour its solemn words, whether given in Parliament, the Merdeka “social contract” or in the Malaysian Constitution.

This is why I seriously urge the Prime Minister to support the DAP proposal to refer the Constitution Amendment Bill 2004 to a Select Committee before a second reading vote to allow for detailed study and extensive public consultation, particularly on water privatization and the federalization of water management, but most important of all, compliance with Article 76(1)© for request to Parliament for the constitutional amendment to be made by the State Legislative Assemblies.

If such a reasonable and sensible proposition is not acceptable because the Barisan Nasional, with nine-tenth parliamentary majority, can do what it wants, including tearing up entrenched constitutional provisions whether to protect prerogative powers of states or fundamental rights of Malaysian citizens, then DAP MPs will have no choice but to vote against the Constitutional Amendment Bill 2004 although we are very open about more efficient water management, handling of heritage issues and the raising of the retirement age of judges from 65 to 66.



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