INTRODUCTION

The Federal Constitution (FC) is the supreme law in Malaysia. It has been called a

the supreme law of the land. Like a legally binding contract, any amendment assumes
fundamental significance and hence, should not be easily done.

Malaysia practices parliamentary democracy under the administration of a constitutional

monarchy with His Majesty Yang Di-Pertuan Agong as The Head of The State. Constitution
was drafted by providing conditions for the experience of this system. One of the conditions of
parliamentary democracy is the separation of powers into three parts in the government, the
Legislative, Judicial and Administrative or Executive.

In Malaysia system of government, Parliament has the power to enact laws. Because of that,
the Federal Assembly can also be mended as the Parliament. Legislative power is granted in
accordance with Article 44 of the Federal Constitution of the Yang Di-Pertuan Agong, the
Senate and the House of Representatives. Both Houses in the Parliament play an important role
in the legislative process.

The Federal Constitution needs to develop over time to correct provisions that have proven to
be inadequate or unworkable, to respond to new needs or changing public demands and to
reflect evolving concepts of rights. A living constitution will often change organically, through
emerging political conventions and through judicial interpretation.

However, there is also a need for constitutional amendments, which alter the content of a
constitutional text in a formal way. Constitutional amendment provisions, regulating the
conditions and procedures for such formal amendments, are therefore a near-universal feature
of contemporary constitutions.

That said, changing political, economic and social circumstances have created the need to
amend the original contract some for justifiable reasons, while others are more controversial.
For example, when Sabah, Sarawak and Singapore joined Malaya to form Malaysia in 1963,
the Malaysia Act was passed in Parliament to amend the Constitution to provide for the name
change and the inclusion of the three new states.

the nine hereditary state rulers of immunity from prosecution. This came about after an incident
where the then Sultan of Johor allegedly assaulted a sports coach.

Malaysia Its Development: 1957 t a constitution which

cannot bend will ultimately be broken, one must also be aware of a constitution which is

He observed that some of the more fundamental amendments to the Malaysian Constitution

The provision to amend the Constitution falls under Article 159. The Reid Commission framed
it in such as way that an amendment would not be too difficult to the extent of frustrating the
need for amendment, but at the same time, not too easy that it would end up weakening our
constitutional safeguards.

On the one hand, a constitutional amendment process that is too rigid making formal
amendments too difficult will prevent necessary reforms, ultimately resulting in a
constitution that loses both functionality and legitimacy. On the other hand, a constitution that
is too flexible making formal amendments too easy leaves the constitution and the rights
and institutions it establishes vulnerable to erosion by the incumbent government.

For this reason, constitutions need provisions regulating the amendment procedure, in order to
allow amendments when, after broad deliberation, there is a sufficient consensus for change,
while protecting the constitution from shortsighted or partisan amendments.
PROCESS OF CONSTITUTIONAL AMENDMENTS

Proposal/Bill on the amendment to be discussed /

debated in the Parliament
1
In the Parliament, the Bill will be debated & discussed
on some levels which are FIRST READING. SECOND
2 READING, COMMITTEE LEVEL and THIRD READING

After the debate, the Bill will need to be approved

according to the required number of voters. This
3 depends on the matters relating to the Bill

According to the procedure, the approved Bill will be sent to the Yang Di
Pertuan Agong (YDPA) for his Ascension.
4
Yang Di-Pertuan Agong must give his consent within 30 days, if not the bill
will be directly implemented without his consent. After getting the consent
of the Yang Di-Pertuan Agong or the period of 30 days, the bill will written
5 as law and can be enforce by the executive and interpreted by the judiciary
METHODS OF AMENDING THE FEDERAL CONSTITUTION (Article 159)

Most of the requirements on the amendments of the Federal Constitution falls under Article
159.
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 The Conference of Rulers or Yang Dipertua Negeri of Sabah or
Sarawak.

1. Simple Majority of the Parliament

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 YDPA 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
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).

2. Special Majority of the Parliament (2/3 majority)

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 YDPA. If the YDPA refuses assent, it is
arguable that he can be bypassed after thirty days under the special procedure of Article 66(4A).
3. Special Majority of the Parliament AND consent from the Conference of Rulers (COR)
Thirdly, the Federal Constitution can be amended through assent of Conference of Rulers. As
stated in Article 159(5), the COR is an essential component of the amending process in respect
of those amendments specified in Article 159(5). The COR 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 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
position of the Malay language in Article 152, privileges of the Malays and the natives of Sabah
and Sarawak in Article 153, 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 the Parliament and receive the consent of the Conference of Rulers.

4. Special Majority of the Parliament AND consent from Yang Dipertua Negeri Sabah or
Yang Dipertua Negeri Sarawak
These amendments to special interest of Sabah and Sarawak enumerated in clause 2 of Article
161E require not only the approval of two-third of the Parliament but also the concurrence of
Yang Dipertua Negeri of Sabah or 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 in the states.

5. Article 150 - Executive power to declare emergency**

Another way of amending the Constitution is by Article 150 which gives the executi power to
declare emergency.
SOME EXAMPLES ON THE AMENDMENT

1. Article 10 (1971)

Following the tragedy on 13 May 1969, Tun Abdul Razak moved to enshrine the new social
compromises through the controversial Constitution (Amendment) Act 1971. Dubbed the

freedom of speech, assembly and association, parliamentary privileges, the national language,

defined to include issues such as citizenship, language, the special position of the
could not be discussed openly,
even in Parliament. The Sedition Act, previously inapplicable within the confines of the august
House and state legislatures, now applies throughout.

This has brought about the perception that the Judiciary is subservient to the Executive, and
this has led to a serious deterioration in public confidence in the Judiciary. It is also inevitable
that investor confidence would also be affected if investors are of the view that the Judiciary is
not able to do justice as best as it could.

2. Article 121 (1988)

In judicial power of the

provision
that the judicial power of the Federation vested in the Judiciary. Instead, it was stipulated that
l have such jurisdiction and powers as may be

The purpose of this proposed Amendment to Article 121 of the Federal Constitution is to affirm
the doctrine of separation of powers and to ensure that the sovereignty of the judicial arm of
government is inextricably infused within the basic structure of the Constitution.
3. Article 119 (2021)

In December 2021, Article 119 of the Federal Constitution has been amended and came into
operation. The amendment of Article 119 grants citizens that have attained the age of 18 years
on the qualifying date the right to vote in a constituency in any election to the House of
Representatives or the Legislative Assembly.

This amendments provides for, among other things, matters relating to the Federal Legislature
and elections.

The other key changes to the Constitution which came into operation in 2019 include the
following:

i) Amendment of Article 47 of the Constitution resulting in the lowering of the minimum

age limit of a member of the House of Representatives from 21 to 18 years old; and

ii) Amendment to section 5 of the Eighth Schedule of the Constitution which now provides
that every citizen of or over the age 18 years old who is a resident in a state is qualified to be a
member of that State s Legislative Assembly, unless disqualified.
OVERVIEW OF THE AMENDMENT

In the Malaysian Constitution, there is no provision on the basic structure of provisions which
cannot be modified because they are more important than the other ones. For example, in
France the provision which prescribes that France is a republic is part of the basic structure, as
in Germany, and the provisions on federalism and human rights cannot be amended. Such
provisions on basic structure are lacking and all the provisions of the Malaysia Constitution are
considered to be of the same importance.
ADVANTAGES OF CONSTITUTIONAL AMENDMENTS

1. Protects the key principal of political process

Some political principles are so important that it should be difficult to change them. This
includes the Constitutional Monarchy system which has been practiced in Malaysia since its
independence. Basic democratic ideas such as elections every five years and separation of
powers could be seen as essential principles. The Federal Constitution allocated some ideals
almost completely immune from change, as the process and requirements are very rigid, such
as the matters relating to special position of the Malay Language, Article 152.

2. Allowing the Constitution to develop from time to time

The fact that there is a way (regardless its rigidity) to amend the Federal Constitution shows
that there is a room to improve and adjust the laws in Malaysia. This is important as the people
and environment are undeniably change and develop from time to time. Therefore it is
important for the law to improvise according to the changes.

3. Prevents abuse of power

An entrenched Constitution stops an individual from one political party changing

constitutional rules for their own benefit. This was a key aim of the Federal Constitution. Most
of the amendments require at least special majority of the Members of Parliament to be passed.
It is a good thing that Malaysian Parliament is no longer controlled by Barisan Nasional where
they used to have more than two-third representatives in the Parliament. This situation would
make the amendments better as it has to go through check and balance. For instance, YB Syed
Saddiq went to meet and persuade each Member of Parliament to support his proposal to lower
the voting age to 18. He took the initiative to meet each members regardless their political party
and ended up achieving the two-third approval. This situation is an obvious proof that it is
almost impossible for any event of abuse of power to happen.
DISADVANTAGES OF CONSTITUTIONAL AMENDMENTS

1. Difficult to remove outdated aspects

As the process and requirement to amend constitution is too rigid, it also requires a broad
deliberation. When a part of the Constitution is outdated or unpopular, it is difficult to get wide
support to make necessary changes. The original document is over 65 years old and Malaysian
society has changed dramatically, as have key principles like democracy. An obvious example
of this is the rule where the minimum number of voting is 21. This mechanism was established
when Malaysia was under developed and there were very limited access to information. There
were fears that the people would not make rational decisions, allowing the people 21 years old
and above only to vote in a general election.
have access to information and can make decision on the voting, hence the need for the
amendment of constitution. A lack of political quality in voting undermines core principles of
modern democracy, yet the system cannot be changed.

2. Difficult to incorporate new ideas

Views have changed dramatically since 1957, as have the needs of society, but it is difficult to
incorporate additions that may improve the workings of the Constitution due to its entrenched
nature. In a modern society there is huge consensus over the idea of including Johor in the
States of Malaya and Sabah in the states of Borneo as there are already considered as one.
However, the proposed amendment of Article 1(2) of the Federal Constitution should read:
(a) the States of Malaya namely, Johore, Kedah,
Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and
Terengganu; and (b) the Borneo States, namely, Sabah and Sarawak was rejected due to
resistance to change.

3. Time consuming
Amending constitution would involve a lengthy and rigid process. Therefore it would consume
a large number of time to complete. Getting the members to agree by having debates on the
second and third reading itself would result to time delays. For example, Article 10 of the FC

in 13 May 1969. However, the amendment was complete and effective in 1971. Here, we can
see that there were two years passed before the amendment of Constitution
CONCLUSION

Unlike the US, whose 27 constitutional amendments, from the Bill of Rights to the abolition

a more inclusive, progressive and emancipated society, the story of the Federal Constitution of
Malaysia reveals a nation that is heading the other way towards more exclusivism, regression
and repression.

Critical amendments made over 60 years have altered the fundamental nature and spirit of the
original Reid Constitution of 1957 by concentrating power in the hands of the executive,
dismantling various constitutional safeguards with regards to fundamental liberties and the use
of emergency powers, overhauling the electoral system in order to ensure the longevity of the
incumbent government, and suppressing rival centres of power, including institutions such as
the Malay royalty and the judiciary.

As a result, the Constitution today no longer embodies the spirit and intentions of the founders
of the country. This is perhaps an appropriate reflection of the Malaysian polity today.
Although the same party that ruled at independence continues to rule, there are few who would
agree that the current leadership even remotely adheres to the same ideals and principles as its
pioneers.

Besides, a constitution that is too flexible, or making formal amendments too easy would leave
the constitution and the rights and institutions. It establishes vulnerable to erosion by the
incumbent government.

At the very least, arbitrary changes to the Constitution are now improbable, given that the ruling
regime has since 2008 lost its customary two-thirds control over Parliament, and by virtue of
that, also its ability to amend the Constitution unilaterally. Yet plugging the leak is not fixing
the problem.

Ultimately, fixing Malaysia requires fixing its laws. If our country is to find its place in the sun
as an inclusive and progressive nation of the twenty-first century, then the political will to
rewrite our laws to make for a more inclusive, open and fair society has to be found.
References:

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bill-unanimously-approved-in-parliament/2049369

3. https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-
news/major-changes-to-the-constitution

4. https://www.malaysianbar.org.my/article/news/press-statements/press-
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