LKS reply to Shad Faruqi
mslee
Editor
New Straits Times
Kuala Lumpur
Dear Sir
Prof. Shad invited to forum on the constitutional case of the
millennium on the legality and constitutionality of the tenth
Parliament
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I refer to "Comment" by Prof. Dr. Shad S. Faruqi, Professor of Law,
Universiti Teknologi Mara in today’s New Straits Times entitled
"Dr. Mahathir’s advice on summoning Parliament was constitutional".
The conclusion reached by Prof. Shad is that a caretaker Prime
Minister after the dissolution of Parliament and before a new
government had been formed can usurp the powers of a new Cabinet
yet-to-be-formed to advise the Yang di Pertuan Agong to summon the
first meeting of a newly-elected Parliament.
Prof. Shad said:
"During a dissolution, the Yang di Pertuan Agong does not become an
absolute monarch.
"He remains bound under Article 40(1) to act on the advice of the
prime minister except in four situations mentioned in Article 40(2)
where he has a measure of discretion."
Prof. Shad had overlooked the actual wording of Article 40(1) of the
Constitution which reads:
"40 (1) In the exercise of his functions under this Constitution or
federal law the Yang di-Pertuan Agong shall act in accordance with the
advice of the Cabinet or of a Minister acting under the general
authority of the Cabinet, except as otherwise provided by this
Constitution; but shall be entitled, at his request, to any
information concerning the government of the Federation which is
available to the Cabinet."
Prof. Shad is therefore incorrect when he wrote that during a
dissolution, the Yang di Pertuan Agong "remains bound under Article
40(1) to act on the advice of the prime minister", when it should be
"remains bound under Article 40(1) to act on the advice of the
Cabinet or of a Minister acting under the general authority of the
Cabinet", as the Cabinet and the Prime Minister are two different
legal entities.
Article 43 of the Constitution reads:
"43. (1) The Yang di Pertuan Agong shall appoint a Jemaah Menteri
(Cabinet of Ministers) to advise him in the exercise of his
functions."
It is clear that even in ordinary times, the Yang di Pertuan acts on
the advice of the Cabinet and not just the Prime Minister, unless the
Prime Minister is "acting under the general authority of the Cabinet",
which would have to be proved and established.
There are two questions here:
(i) Firstly, can a caretaker Prime Minister advise the Yang di
Pertuan Agong to invoke Article 55 to summon the first meeting of the
new tenth Parliament, even before the new Prime Minister was sworn in,
the new Cabinet Ministers appointed and sworn in or the new Cabinet
held its first meeting?
(ii) Secondly, when he advised the Yang di Pertuan Agong to summon
Parliament in his capacity as caretaker Prime Minister, was he acting
on the decision and authority of the caretaker Cabinet or completely
on his own decision?
I contend that the second question need not even be considered, as the
answer to the first question is that a caretaker Prime Minister cannot
usurp the powers of a new Cabinet still-to-be-formed to advise the
Yang di Pertuan Agong to summon the first meeting of the new tenth
Parliament on December 20, 1999.
Prof. Shad also argued that there were emergency grounds for the
reconvening of the Dewan Rakyat as a temporary budget had to be
provided for.
Probably, Prof. Shad had been too busy to read my statements rebutting
the accusation by the Prime Minister, Datuk Seri Dr. Mahathir Mohamad,
that the opposition was trying to disrupt the administration of the
country, that his government was behind time on the budget and that
the government would grind to a halt without a sen to pay salaries if
the budget is not passed before the end of the year.
Is Prof Shad aware:
1. that this "emergency" situation is solely the creation of Dr.
Mahathir in his most irresponsible timing of the tenth general
election to deny 680,000 new voters from exercising their
constitutional right to vote?
2. that the Barisan Alternative had offered full co-operation to pass
by before the end of the year the RM30 billion contingency finance
bill to authorise government expenditures for the first half of next
year until the 2000 Budget is passed but this must be done without
committing any statutory rape of the Constitution and Parliamentary
Standing Orders?
3. that the only reason why the Barisan Nasional government is not
prepared to accept the Barisan Alternative proposal to convene
Parliament on Dec. 29 and 30, 1999, which would pass the contingency
finance bill as well as comply with the Constitution and the
Parliamentary Standing Orders on the convening of the first meeting of
the tenth Parliament (with Dewan Negara meeting on December 31)is
because of some trivial reason as Cabinet Ministers not wanting to
spoil their annual holiday plans?
I do not propose here to give a point-by-point rejoinder to Prof.
Shad’s article although I feel he is standing on very shaky ground in
many instances.
I thank Prof. Shad for the pains he had taken to give his views on the
constitutionality of the convening of the tenth Parliament. It would
be interesting to read his views on the constitutionality of other
controversial issues in the country, as the disenfranchisement of
680,000 new voters from exercising their constitutional right to vote
and the failure of the Election Commission to discharge its
constitutional mandate to conduct a free, fair and clean general
election.
While I disagree with Prof. Shad, I respect his right to hold
contrary views although I must express my surprise at the stand he has
taken as I had always been under the impression from his previous
writings that he is very progressive in his legal and constitutional
perspectives.
I am sure Prof Shad will agree that if the tenth Parliament had not
be convened in accordance with the Constitution on December 20, 1999,
all laws and businesses passed by the tenth Parliament 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.
Furthermore, that any legal action to challenge the legality and
constitutionality of the convening of the tenth Parliament 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 recent four-day meeting, but in all future
meetings as well as the legality of the Ministers and MPs arising from
the unlawful oath-taking on 20th December 1999.
As part of the widest consultation process on the constitutional case
of the millennium on the legality and constitutionality of the
convening of the tenth Parliament, I propose to convene a series of
forums to seek the views of jurists, constitutional lawyers, legal
academicians and other luminaries in the field of constitutional law
and I will certainly invite Prof Shad to the first forum of the
series now that he has the opportunity to sharpen his perceptions on
this subject.
I hope that your paper can publish this reply to Professor Shad’s
"Comment".
Yours truly,
- Lim Kit Siang (24.12.99)
- http://www.malaysia.net/dap
- http://www.geocities.com/Tokyo/3399/
- http://www.geocities.com/CapitolHill/3939
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