25th December 1999

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

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."
 

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
Penang