2. The Constitution itself provides by Articles 159 and 161E how
it may be amended.
Raja Azlan Shah FJ in Loh Kooi Choon explained,
“Our Constitution prescribes four different methods for
amendment of the different provisions of the
Constitution:
1) 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 preview of Article 159.
3. 2) 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;
3) 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 Malaysia state
in question;
4) The amending clause (3) of Article 159 which requires a
majority of two-thirds in both Houses of Parliament.”
4. 1. A159(5) - Amendment requiring a special 2/3 majority in
both Houses & the consent of the Conference of Rulers.
Article 159(5) of the FC. These include:
1. Restrictions on free speech prohibiting the questioning
of ‘sensitive issues’ - A10(4)
2. Citizenship rights – Part III
3. Privileges, position, honours or dignities of the rulers –
A38
4. Applicability of the law of sedition to legislative &
parliamentary privileges – A63 & A72(4)
5. Precedence of ruler – A70
5. 6. Rulers’ rights of succession – A71
7. Special position of the Malay language- A152
8. Privileges of Malays & the natives of Sabah & Sarawak
– A153
6. 2. A161E - Amendment requiring a 2/3 majority in both
Houses, the assent of the YDPA & the consent of Yang di-
Pertua Negeri of Sabah & Sarawak
Article 161E (2) of the FC . These include:
1. Citizenship of persons born before Malaysia Day
2. The constitution and jurisdiction of the High Court of
Borneo & the appointment , removal & suspension of
judges of the court
7. 3. The matters with respect to
a) which the legislature of the state may or may not
make laws,
b) the executive authority of the state in those matters
c) financial arrangement between the Federal
government and the state.
3. Religion in the state, the use in the state or in
parliament of any language and special treatment of
natives of the state
4. The allocation to the state of a quota of members of
parliament
8. 3. A159(3) - Amendment requiring special majorities of the
total membership of each House on the second & thirds
readings & assented to by the YDPA
Applicable to most constitutional amendments
Exceptions – A159(4)
9. 4. A159(4) - Amendment by a simple majority of the members
present & voting in the Dewan Rakyat & Dewan Negara &
assented to by the YDPA
• Same procedure as to the procedure of enacting ordinary
legislation.
• Applies in the following cases;
a) Part III of the Second Schedule (relating to
citizenship), the Sixth Schedule (Oaths and
affirmations) and the Seventh Schedule (Election and
Retirement of Senators).
b) Incidental & consequential amendment to
parliament’s legislative powers other than powers in
relation to the states under A74 & A76
10. bb) Matters relating to the admission of new state other
than in relation to Sabah & Sarawak
c) Any amendment consequential on an amendment
made under paragraph A159(4)(a).
11. An absolute majority is a voting basis which requires that
more than half (or two-thirds in the case of two-thirds
absolute majority) of all the members of a group (including
those absent and those present but not voting) must vote in
favour of a proposition in order for it to be passed.
In practical terms, it may mean that abstention from voting
could be equivalent to a no vote.
Absolute majority can be contrasted with simple majority
which only requires a majority of those actually voting to
approve a proposition for it to be enacted.
12. For amendments to the Malaysian Constitution, the
requirement for an absolute two-thirds majority is set out in
Article 159 (3) which says that each House of Parliament
must pass the amendment by "the votes of not less than
two-thirds of the total number of members of that House"
Thus, for the Dewan Rakyat, the minimum number of votes
required is 148, being two-thirds of its 222 members.
13.
14. Whether a constitutional amendment can destroys the basic
structure of the Constitution?
However, the constitution itself does not specify which of
the provisions are to be considered as the basic structure.
15. Phang Chin Hock v PP –
It was argued that there were 5 features that formed the
basic structure of the Malaysian constitution, namely;
▪ The supremacy of the constitution
▪ Constitutional monarchy
▪ Islam as the religion of the federation
▪ Separation of powers
▪ The federal character of the constitution
16. The government tabled two major amendments to the FC
which sought to
1. To insert (5) to A66 - Alter the nature of the power of
assent to bills, which was to be replaced by a provisions
which would have bypassed the YDPA after 15 days;
2. A150 - Take away the power to declare emergency from
the YDPA and put it at the hands of the PM.
The government claimed that there was no such power in
the first place as the YDPA, as a constitutional monarch, was
under obligation to act on the government’s advice.
17. The YDPA refused to sign the bill after it was passed by the
two Houses & the CoR vetoed the Bill – followed with
negotiations between the federal government with the
Conference of Rulers representing the YDPA and the rulers.
A compromise reached & the government withdrew the
amendment.
The provision on assent bill was replaced by new procedure
(amendment 1984)
1. The king was granted 30 days to consider a Bill that was
presented to him
2. The King was given a right to return the Bill to the House
where it originated from with written reasons for his
objections
18. 3. If the houses re-enacted the bill a second time, the bill
would returned to the king for royal assent
4. The king could delay the bill for a second 30 days period
5. If the king still refused to give his assent, the bill would be
deemed to become law.
However, constitution amendment 1994, the following
provisions were repealed –
1. The king to send his written objections to parliament
2. For parliament to re-enact the bill
3. For the king to have second 30 days delay period
A66(4A) – if a bill is not assented to by the YDPA within 30
days, it shall become law at the expiration of the time as if
he had assented thereto.
19. Before 1993 – A181 guaranteed the sovereignty &
prerogatives of the rulers & the YDPA – an absolute
immunity from proceedings in any court
1993 – the government sought to amend the FC to make the
YDPA & sultans liable to criminal & civil proceedings in the
ordinary courts – the bill was passed in January 1993 but
vetoed by the CoR & the YDPA refused to give his assent
A compromise bill was tabled in march 1993 –
1. No civil or criminal action can be commenced against the
rulers/YDPA in their personal capacities except with the
consent of the AG
20. 2. A special court will be created to try all cases by 0r
against the rulers no matter where the cause of action
arose
3. The CoR will have the right to nominate 2 out of 5 judges
on the special court
4. If convicted of a crime, the YDPA/ rulers & their consorts
may be pardoned by the CoR
