Constitutional Amendment

Introduction  The Federal Constitution allows for amendment to be made through federal law.  The power granted by the Constitution may sometimes sit uncomfortably with pronouncement of the supremacy of the Constitution under Article 4 (1)  The Federal Constitution allows for amendment to be made through federal law.  The power granted by the Constitution may sometimes sit uncomfortably with pronouncement of the supremacy of the Constitution under Article 4 (1)

 Raja Azlan Shah in “Loh Kooi Choon” explained the need for power to amend the Constitution by saying; “It is therefore plain that the framers of our Constitution prudently realised that future context of things and experience would need a change in the Constitution, and they, accordingly, armed Parliament with the ‘power of formal amendment’. They must be taken to have intended that, while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so to allow the country’s growth.  Raja Azlan Shah in “Loh Kooi Choon” explained the need for power to amend the Constitution by saying; “It is therefore plain that the framers of our Constitution prudently realised that future context of things and experience would need a change in the Constitution, and they, accordingly, armed Parliament with the ‘power of formal amendment’. They must be taken to have intended that, while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so to allow the country’s growth.

In any event, they must be taken to have intended that it can be adapted to changing conditions, and that power of amendment is an essential means of adaptation. A Constitution has to work not only in the environment in which it was drafted but also centuries later. According to Thomas Paine, (Rights of Man) “The vanity and presumption of governing beyond the grave it the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow…It is the living and not the dead, that are to be accommodated. In any event, they must be taken to have intended that it can be adapted to changing conditions, and that power of amendment is an essential means of adaptation. A Constitution has to work not only in the environment in which it was drafted but also centuries later. According to Thomas Paine, (Rights of Man) “The vanity and presumption of governing beyond the grave it the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow…It is the living and not the dead, that are to be accommodated.

MODES OF CONSTITUTIONAL AMENDMENT

 A written constitution that is immutable may become useless with the passing of time.  Changing social, political and economic conditions will require changes to the constitution.  Realizing this, the Reid Commission recommended a method which “should be neither so difficult as to produce frustration nor so easy as to weaken seriously the safeguards which Constitution provides”  A written constitution that is immutable may become useless with the passing of time.  Changing social, political and economic conditions will require changes to the constitution.  Realizing this, the Reid Commission recommended a method which “should be neither so difficult as to produce frustration nor so easy as to weaken seriously the safeguards which Constitution provides”

 The Reid Commission recommended that; “Amendments should be made by Act of Parliament provided that an Act to amend the Constitution must be passed in each House by a majority of at least two-thirds of the members voting. In this matter the House of Representative should not have power to overrule the Senate. We think that this is a sufficient safeguard for the States because the majority of members of the Senate will represent the States….”  The Reid Commission recommended that; “Amendments should be made by Act of Parliament provided that an Act to amend the Constitution must be passed in each House by a majority of at least two-thirds of the members voting. In this matter the House of Representative should not have power to overrule the Senate. We think that this is a sufficient safeguard for the States because the majority of members of the Senate will represent the States….”

 The recommendation of the Reid Commission, considered too easy,  Recommendation was revised to provide for the votes of not less than two-thirds of the total number of members of each Dewan.  As revised, the recommendation became part of what is now Article 159 of the of the federal Constitution  The recommendation of the Reid Commission, considered too easy,  Recommendation was revised to provide for the votes of not less than two-thirds of the total number of members of each Dewan.  As revised, the recommendation became part of what is now Article 159 of the of the federal Constitution

 The Federal Constitution, after the formation of Malaysia, provides for its amendment in Articles159 and 161E.  These set out four different modes of amendment, according to the provision which is sought to be amended; 1.Amendments requiring a two-thirds majority 2.Amendments requiring a simple majority  The Federal Constitution, after the formation of Malaysia, provides for its amendment in Articles159 and 161E.  These set out four different modes of amendment, according to the provision which is sought to be amended; 1.Amendments requiring a two-thirds majority 2.Amendments requiring a simple majority

3.Amendments requiring the consent of the Majlis Raja-raja (Conference of Rulers) 4.Amendments requiring the consent of the Yang di-Pertua Negeri (Governor) of Sabah and Sarawak 3.Amendments requiring the consent of the Majlis Raja-raja (Conference of Rulers) 4.Amendments requiring the consent of the Yang di-Pertua Negeri (Governor) of Sabah and Sarawak

Amendment requiring a two- thirds majority  Most provisions of the constitution can be amended by a Bill enacted for that purpose and which is supported by not less than 2/3 of the total number of each Dewan on its second and third readings.  This may be considered as the common method of amendment.  Most provisions of the constitution can be amended by a Bill enacted for that purpose and which is supported by not less than 2/3 of the total number of each Dewan on its second and third readings.  This may be considered as the common method of amendment.

Amendment requiring a simple majority  Certain provisions of the constitution can be amended by an ordinary Bill which is supported by a simple majority of members present and voting in each Dewan.  These provisions are set out in Article 159 (4).  They cover some matters of considerable importance for example;  Certain provisions of the constitution can be amended by an ordinary Bill which is supported by a simple majority of members present and voting in each Dewan.  These provisions are set out in Article 159 (4).  They cover some matters of considerable importance for example;

 The admission of any state to the federation  The composition of the Dewan Negara, and the rules concerning the election and retirement of its members  Restriction of freedom of movement within the federation and of freedom of speech, assembly and association  Creation of inferior courts and jurisdiction and powers of the High Courts and inferior courts  The admission of any state to the federation  The composition of the Dewan Negara, and the rules concerning the election and retirement of its members  Restriction of freedom of movement within the federation and of freedom of speech, assembly and association  Creation of inferior courts and jurisdiction and powers of the High Courts and inferior courts

Amendment requiring the Consent of the Majlis Raja-raja  The amendments of a number of provisions require, in addition to a two-thirds majority, the consent of Majlis Raja-raja.  These provisions, considered the most important in the constitution, concern what are “sensitive issues”;  The amendments of a number of provisions require, in addition to a two-thirds majority, the consent of Majlis Raja-raja.  These provisions, considered the most important in the constitution, concern what are “sensitive issues”;

 The Majlis Raja-raja  The precedence (rank) of Rulers and Governors  The federal guarantee concerning the institution and succession of Rulers  The special position and privileges of the Malays and natives of Sabah and citizenship  The spectrum of provision was expanded in 1971 to include provisions concerning restrictions on freedom speech in the interest of internal security and public order  Any law passed there under prohibition the questioning (but not the implementation) of any of the so-called ‘sensitive issues’.  A law altering the boundaries of a state also requires the consent of the Majlis Raja-raja, in addition to the consent of the state itself  The Majlis Raja-raja  The precedence (rank) of Rulers and Governors  The federal guarantee concerning the institution and succession of Rulers  The special position and privileges of the Malays and natives of Sabah and citizenship  The spectrum of provision was expanded in 1971 to include provisions concerning restrictions on freedom speech in the interest of internal security and public order  Any law passed there under prohibition the questioning (but not the implementation) of any of the so-called ‘sensitive issues’.  A law altering the boundaries of a state also requires the consent of the Majlis Raja-raja, in addition to the consent of the state itself

Amendments requiring the Consent of the Yang di-Pertua Negeri (Governor) Sabah and Sarawak  Constitutional amendments affecting special ‘safeguards arranged for Sabah and Sarawak upon their accession and enumerated in Article 161E require  And in addition to a 2/3 majority, the consent of the Yang di-Pertua Negeri of either or both of these states, as the case may be.  Constitutional amendments affecting special ‘safeguards arranged for Sabah and Sarawak upon their accession and enumerated in Article 161E require  And in addition to a 2/3 majority, the consent of the Yang di-Pertua Negeri of either or both of these states, as the case may be.

 These ‘safeguards’ concern;  Citizenship  The constitution and jurisdiction of the High Court of Sabah and Sarawak  The appointment, removal and suspension of its judges  State legislative and executive powers and federal-state financial arrangements  Religion  The national language  The special treatment of natives of te state  And entry and residence in the state  These ‘safeguards’ concern;  Citizenship  The constitution and jurisdiction of the High Court of Sabah and Sarawak  The appointment, removal and suspension of its judges  State legislative and executive powers and federal-state financial arrangements  Religion  The national language  The special treatment of natives of te state  And entry and residence in the state

 In the case of a Bill amending the constitution, the Dewan Negara has the power veto.  The role assigned to that Dewan, however has been rendered ineffective by modifications to its composition.  The Merdeka Constitution provided for 22 indirectly elected senators (i.e. two from each state, there being eleven States then) and 16 appointed senators.  In the case of a Bill amending the constitution, the Dewan Negara has the power veto.  The role assigned to that Dewan, however has been rendered ineffective by modifications to its composition.  The Merdeka Constitution provided for 22 indirectly elected senators (i.e. two from each state, there being eleven States then) and 16 appointed senators.

 However this ratio 22; 16 has been altered through several constitutional amendments from 1963 to 2004, such as today the ratio stands at 26; 44  The amendments modifying the composition of the Dewan Negara run counter the recommendations of the Reid Commission as incorporated in what is now Article 45 (4) of the Federal Constitution.  However this ratio 22; 16 has been altered through several constitutional amendments from 1963 to 2004, such as today the ratio stands at 26; 44  The amendments modifying the composition of the Dewan Negara run counter the recommendations of the Reid Commission as incorporated in what is now Article 45 (4) of the Federal Constitution.

 That Article authorize Parliament to increase to the three the number of senators to be elected for each State;  This is to provide for direct elections to the Dewan Negara and to decrease or even abolish, appointed senators  From 31 August 1957 until August 2001, the Federal Constitution has been amended no less than 36 times in minor and major aspects  That Article authorize Parliament to increase to the three the number of senators to be elected for each State;  This is to provide for direct elections to the Dewan Negara and to decrease or even abolish, appointed senators  From 31 August 1957 until August 2001, the Federal Constitution has been amended no less than 36 times in minor and major aspects