CONSTITUTIONAL AMENDMENTS

Amendments are something that are difficult to avoid especially if a constitution is more of a working document than a brief statement of basic rules and ideals But whatever the case a balance must be struck between those competing considerations.

On the one hand a constitution is the basic law, containing fundamental rules about state running and so various safeguards which cannot be taken away so easily.

The philosophy behind the amendments procedure in Malaysia has been laid down by the Reid Commission - namely that the methods ‘should not be too difficult as to produce frustration nor too easy as to weaken seriously the safeguards of the Constitution’.

Methods of amending the Malaysian Constitution There are four different ways of amending

the Federal Constitution as laid down in Articles 159 and 161E. (Raja Azlan Shah FJ in Loh Kooi Choon)

1. Amendment by way of simple majority at both the Senate and the House of Representative.

2. Requires the support of two-thirds majority of the members of both houses.

Cont. 3. Requires the 2/3 majority and the consent

of the Conference of Rulers.

4. The fourth method of amendment stipulates a 2/3 majority and the consent of either the Yang di-Pertua Negeri of Sabah or Sarawak.

Another way of amending the Constitution is through Article 150 which gives the executive power to declare emergency. Thus, effectively, there are actually five different ways of amending the Constitution.

1. Amendment by way of simple majority at both the Senate and the House of Representative.

Article 159(4) These are amendments with regards to: a) amendments to part III of the second

schedule (containing supplementary provisions relating to citizenship); to the sixth schedule (containing forms of oath and affirmation); and to the seventh schedule (dealing with the election and retirement of senators);

b) Any amendment incidental to or consequential on the exercise of any power to make law conferred on Parliament by any provision of the constitution other than articles 74 and 76;

bb) Subject to art 161E (admission of Sabah & Sarawak) any amendment made for or in connection with the admission of any state to the Federation or its association with the states of the Federation, or any modification of the constitution made as to its application to a state so previously admitted or associated.

c) Any amendment consequential on an amendment made under paragraph (a).

2. Requires the support of two-thirds majority of the members of both houses.

Amendments not included in the above categories nor in the next, require only the approval of a two-thirds majority in each House of Parliament, and do not require for their validity the consent of the Conference of Rulers nor the concurrence of any of the Sabah and Sarawak’s Yang di-Pertua Negeri.

3. Requires the 2/3 majority and the consent of the Conference of Rulers. Article 159(5) A law making an amendment to Clause

(4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, 63(4), 70,71, 72(4), 152 or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers.

4. The fourth method of amendment also stipulates a 2/3 majority and the consent of either the Yang di-Pertua Negeri of Sabah or Sarawak.

These amendments of special interest to Sabah and Sarawak enumerated in clause (2) of Article 161E require not only the approval of a two-thirds majority in each House of Parliament but also the concurrence of the Yang di-Pertua Negeri of Sabah and Sarawak.

They are amendments to the constitution that affect the right of persons born before Malaysia Day, the constitution and jurisdiction of the High Court in Sabah and Sarawak, the matters with respect to which the legislature of the state may or Parliament may make laws, and religion in the state and the use of any language and the special treatment of natives of the states.

An overview of the amendments since 1957.

A brief review of the nature, extent and implications of the amendments since 1957 is necessary in order for us to see whether the amending power has been used within the confines laid down by the Reid Commission.

The most notable feature in this respect is the helplessness of the states when it comes to defending their position and rights. This is because some of which unfortunately lie outside the constitutional structure, particularly in the political system.