DAP welcomes Cabinet decision to refer water federalisation and privatization to parliamentary select committee although this should have been done before the vote on the Constitution Amendment Bill 2004, which was “putting the cart before the horse” but “half a loaf is better than no bread”
by Lim Kit Siang
(Parliament, Thursday): DAP welcomes the Cabinet decision yesterday to refer water federalization and privatization as well as the two water bills on National Water Services Commission (SPAN) and the water services industry to a parliamentary select committee for deeper study and public feedback, although this should have been done before the vote on the Constitution Amendment Bill 2004 by the Dewan Rakyat on Tuesday. The vote was “putting the cart before the horse” but “half a loaf is better than no bread”.
Before Tuesday’s vote on the second reading of the Constitution Amendment Bill 2004, I had proposed a motion under Standing Order 54(1) of the Dewan Rakyat to refer the Bill to a Select Committee, but it was defeated by the nine-tenth parliamentary majority of the Barisan Nasional.
The DAP is open to both the federalization and privatization of water services, but the former must be carried out in accordance with the provisions of the Constitution and the latter serve the interests of the consumers with regard to the three principles of accessibility, affordability and quality.
As water is a state matter involving one of the diminishing items on the State List in Schedule Nine of the Federal Constitution, any constitutional amendment to federalize water services must observe the federal-state constitutional framework as provided by 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 that any amendment to the State List in Schedule Nine of the Federal Constitution should be at the request of the State Legislative Assemblies concerned.
As no State Legislative Assembly in Peninsular Malaysia had met to surrender its sole prerogative powers on water or requested Parliament to amend the State List to federalize water management, Parliament was putting the cart before the horse in passing the Constitution Amendment Bill 2004, when it should have allowed the State Legislative Assemblies to meet first to forward such a request.
The reference of the Constitution Amendment Bill 2004 to a parliamentary select committee before a vote on its second reading would have been the most proper thing to do for two reasons:
DAP welcomes and supports the establishment of a parliamentary select committee on the water bills, although we had suggested that such a parliamentary select committee should have been the first step in the whole exercise to formulate a new national water policy, and not as an afterthought after the first legislative change has been made with the amendment of the Constitution.
The establishment of a parliamentary select committee on water federalization and privatization will enhance the chances that the two water legislation could pioneer the concept of Regulation Impact Assessment (RIA), which should be required for all future legislation to assess the impact, in terms of risks, costs and benefits, of any proposed law. The adoption of the concept of RIA, like Environmental Impact Assessment (EIA) and Social Impact Assessment (SIA), will lead to a more effective and meaningful policy and law-making process.
The adoption of the Constitution Amendment Bill 2004, although with the requisite two-thirds parliamentary majority, raises the question of its constitutionality as it had not complied with Article 76(1)(c).
In view of the Cabinet decision to establish a parliamentary select committee on water, which will give opportunities to representatives from state governments and state legislative assemblies to make their representations, we will not for the moment pursue the issue of the legality of the Constitution Amendment Bill 2004 in court
* Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman