JUN 2015

PART B

QUESTION 1

Taking into consideration the changing social, political and economic conditions, the Reid
Commission recommended a method of constitutional amendment which, should neither be so
difficult as to produce frustration nor so easy as to weaken seriously the safeguards which the
Constitution provides.

In view of the above statement, explain the modes of amendment set out in Federal Constitution
and whether the existing modes that you have described reflect the recommendation of the Reid
Commission.

Answer:

A written constitution that is immutable may become useless with the passing of time. Taking
into consideration the changing social, political and economic conditions, the Reid Commission
recommended a method of constitutional amendment which, should neither be so difficult as to
produce frustration nor so easy as to weaken seriously the safeguards which the Constitution
provides. The recommendation of the Reid Commission, considered too easy, 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 Federal Constitution.

So, the Federal Constitution, after the formation of Malaysia, provides for its amendment in
Articles 159 and 161E. These set out four different modes of amendment according to the provision
which is sought to be amended. These four modes prescribed in the constitution itself are formal
methods of amendment.

Firstly, by requiring a two-thirds majority. Under article 159(4) paragraphs (a) to (c) some
minor amendments to the constitution can be passed by 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 the following
cases; Amendments to Part III of the Second Schedule (supplementary provision relating citizenship),
Sixth Schedule (oaths and affirmations), Seventh Schedule (election of Senators), incidental and
consequential amendments to Parliaments legislative powers other than powers in relation to the
States under Articles 74 and 76, matter relating to the admission of new States other than in relation
to Sabah and Sarawak and lastly, any amendments consequential to an amendment under Article
159(4)(a).

However, this simple majority procedure gave rise to an engaging controversy in 1963 when
the Federation of Malay sought to admit Sabah, Sarawak and Singapore into its fold. This historic
development required many amendments including one to Article 1(1) to change the name of the
Federation from Malaya to Malaysia and another Article 1(2) to add three more names to the
territories of Federation. In Government of the State of Kelantan v Government of The Federation of
Malaya and Tunku Abdul Rahman Putra Al Haj [1963] MLJ 355 the government of Kelantan opposed
the amendments vehemently for political as well as legal reasons. The legal challenge was based on
many grounds. First, that the Federation of Malaysia Agreement would abolish the Federation of
Malaya and would violate the Federation of Malaya Agreement 1957. Second, that the Federation of
Malaysia Agreement required the consent of all the constituent stated of the Federation of Malaya,
including Kelantan and that this consent (through the Sultan of Kelantan) had not been obtained.
Third, that even 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 in a historic judgement rejected all the
contentions. He ignored the pre-constitutional processes of consultation and ruled that Article 159 of
the constitution nowhere required consultation with or consent of the constituent States as pre-
condition of constitutional change. In bringing about these changes Parliament had done no more
than exercise of powers which were given to it in 1957 by the constituent States including Kelantan.

Secondly, amendments requiring the consent of the Majlis Raja-Raja. These provisions
considered the most important in the constitution, concern what we called sensitive issue. The
provisions that may be amended though this way fall under the following matters, namely
amendments pertaining to the powers of sultans and their respective states, the status of Islam in the
Federation, the special position of the Malays and the natives of Sabah and Sarawak and the status of
the Malay language as the official language.

The Constitution does not enlighten us whether consent of the Conference must be sought
before the Bill is presented to Parliament; before it is submitted to the Yang Di-Pertuan Agong for his
assent; of after the King has given his assent. It is submitted that in order to effectuate the check and
balance mechanism in Article 159(5), the consent of the Conference of Rulers must be obtained before
the Bill is submitted to the King for his assent under Article 66.

However, a constitutional conflict arose due to unfortunate abuse of immunities by several

Rulers, the government of Prime Minister Dato Seri Dr. Mahathir Mohamad (as he was then), in an
extremely courageous and controversial move, sought to amend the Federal Constitution in January
1993 to make Yang Di-Pertuan Agong and the Sultans liable to criminal and civil proceedings in the
ordinary courts. Not surprisingly the Constitution Amendment Bill, introduced on January 1993 passed
both Houses easily. However, it was vetoed by all nine members of the conference of Rulers and,
therefore, refused assent by the Yang Di-Pertuan Agong. The next two months saw the test of wills
between the Royalist on one side and the forces of change led by the Prime Minister on the other.
Ultimately compromise Act (Act A848) was tabled in Dewan Rakyat on 8 March 1993. It offered Their
Majesties four significant concessions. First, no civil or criminal action can be commenced against Their
Majesties in their personal capacities except with consent if the Attorney General (Article 183). This
A.G Filter will not necessary if the Yang Di-Pertuan Agong or the Rulers themselves institute the
proceedings to enforce their civil rights. Second, Their Majesties will not be dragged to the ordinary
courts. A Special Court will be created to try all cases by or against the Yang Di-Pertuan Agong and the
Rulers: Articles 181(2) and 182. This Special Court shall have exclusive jurisdiction to try all civil and
criminal cases against Their Majesties no matter where the cause of action cause.

Thirdly, amendments requiring the consent of the Yang Di-Pertua Negeri (Governor) of Sabah
and Sarawak. Constitutional Amendments affecting special safeguards arranged, for Sabah and
Sarawak upon their accession and enumerated in Article 161E require, in addition to a two-thirds
majority, the consent of Yang di-Pertua Negeri or either both of these states, as the case may be.
These safeguards concern citizenship, the constitution and jurisdiction of High Court in Sabah and
Sarawak, and the appointment, removal, and suspension of its judges; state legislative and executive
powers and federal state financial arrangements, religion, the national language and special treatment
of the natives of the states and entry and residences in the state.

Fourthly, amendments requiring two -thirds majority. Article 159(3) provides the procedure
applicable to most constitutional amendments. 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 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).

In conclusion, A case to highlight the methods available to amend the Federal Constitution
can be found in the case of Loh Kooi Choon V Government Of Malaysia [1977] 2 MLJ 187, where the
Federal Court observed that our Constitution prescribes four different methods for amendment of
the different provisions of the Constitution which are, some parts of the Constitution can be amended
by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary
law. They are enumerated in clause (4) of Article 159 and are specifically excluded from the purview
of Article 159, the amending clause (5) of Article 159 which requires a two-thirds majority in both
Houses of Parliament and the consent of the Conference of Rulers, the amending clause (2) of Article
161E which is of special interest to East Malaysia and which requires a two-thirds majority in both
Houses of Parliament and the consent of the Governor of the East Malaysian State in question and
lastly regarding the amending clause (3) of Article 159 which requires a majority of two-thirds in both
Houses of Parliament.