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Amending Federal Constitution Of Malaysia

Law (Universiti Teknologi MARA)

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TUTORIAL 3

LEGISLATIVE BRANCH

Briefly explain the procedural complexities involved in amending the Federal Constitution.

In general, under Articles 159 and 161E, there are four separate procedures are

prescribed for bringing changes to specified parts of the basic charter. Three of these four

procedures require special majorities meanwhile two out of these require the consent of

institutions or persons outside of Parliament namely Yang Di Pertuan Agong or Governor of

Sabah or Sarawak.

The first procedure in amending the Federal Constitution is through simple majority.

Article 159(4)(a) to (c) provides for some minor amendments to the Constitution can be

passed by a simple majority of the members present and voting in the Dewan Rakyat and

Dewan Negara and assented to by the Yang Di Pertuan Agong. The procedure for these

amendments is similar to the procedure for enacting ordinary legislation. If the King

withholds assent, then under amendments made to Article 66 in 1983, 1984 and 1994, the two

Houses can bypass the King after thirty days. This simple majority procedure applies in

amendments to Part III of the Second Schedule, Sixth Schedule, Seven Schedule, incidental

and consequential amendments to Parliament’s legislative powers other than powers in

relation to the States under Article 74 and 76, matters relating to the admission of new states

other than in relation to Sabah and Sarawak and any amendments consequential to an

amendment under Article 159(4) (a).

In Government of the State of Kelantan v Government of the Federation of Malaya

and Tuanku Abdul Rahman Putra Al Haj [1963] MLJ 355 the Government of Kelantan

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opposed the amendments vehemently for political as well as legal reasons. The legal

challenge was based on the grounds of that the Federation of Malaysia Agreement would

abolish the Federation of Malaya and would violate the Federation of Malaya Agreement

1957, the Malaysia Agreement required the consent of all the constituent states of the

Federation of Malaya, including Kelantan and that this consent had not been obtained and

lastly even if the Constitution of the Federation of Malaya did not explicitly require

consultation with and consent of the States prior to such a radical change, such consultation

and consent were required by a binding constitutional convention. Thomson CJ rejected all

the contentions and rule that Article 259 of the Constitution nowhere required consultation

with or consent of the constituent states as a pre-condition of constitutional change.

Secondly, two-thirds majority is required in amending the Federal Constitution. Under

Article 159(3), most of the provisions of the Constitution can be modified by an amending

Act which has been passed by a special two-thirds majority of the total membership of each

House on the second and third readings and assented to by the King. If the King refuses

assent, it is arguable that he can be bypassed after thirty days under the special procedure of

Article 66(4A). Thirdly, the Federal Constitution can be amended through assent of

Conference of Rulers. As stated in Article 159(5), the Majlis Raja-Raja is an essential

component of the amending process in respect of those amendments specified in Article

159(5). The Majlis has been conferred the momentous power to block amendments to ten key

provisions of the basic charter. These provisions are restrictions on free speech prohibiting

the questioning of “sensitive issues” in Article 10(4), citizenship rights in Part III, privileges,

position, honours or dignities of the Rulers in Article 38, applicability of the law of sedition

to legislative and parliamentary proceedings in Articles 63 and 72, precedence of Rulers in

Article 70, Ruler’s rights of succession in Article 71, special position of the Malay language

in Article 152, privileges of the Malays and the natives of Sabah and Sarawak in Article 153,

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and the special procedures for amending the Constitution under Article 159(5). Any

amending Bill that effects the above matters must be supported by a special two-thirds

majority in both Houses and receive the consent of the Conference of Rulers.

In conclusion, the Federal Constitution cannot be amended and repealed easily. As

recommended by the Reid Commission, a method of constitutional amendment should

neither be so difficult as to procedure frustration nor so easy as to weaken seriously the

safeguards which the Constitution provides.

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