Constitutional amendment

Constitutional Constitutional AmendmentAmendment

Article 159 deals with constitutional amendment/power to amend the Constitution.

In general the provision states that the Parliament can amend the Federal Constitution by passing a law (federal law).

Amenable ConstitutionAmenable Constitution

Suffian FJ:‘…there are many provisions showing that

they realized that the Constitution should be a living document intended to be workable between the partners that constitute the Malayan (later Malaysian) polity, a living document that is reviewable from time to time in the light of experience and, if need be, amended.’

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50

The law, which is made in pursuant to the power given in article 159, will definitely be inconsistent with the existing provision in the constitution and be a law which is passed after Merdeka Day.

Article 4 (1) declares that ‘any law passed after Merdeka Day which is inconsistent with the constitution shall, to the extent of the inconsistency, be void’.

Will the law made under art 159 become void due to the inconsistency?

Rule of Rule of Harmonious ConstructionHarmonious Construction

Phang Chin Hock v PP [1980] 1 MLJ 70

The use of rule of harmonious construction in construing article 159 enables the Federal Court to hold that Acts of Parliament made in accordance with the conditions set out by article 159 are valid "even if inconsistent with the constitution ".

Rule of Rule of Harmonious ConstructionHarmonious Construction

Mohammed Habibullah bin Mahmood v

Faridah bte Dato Talib [1992] 2 MLJ 793

The Methods and Requirements of The Methods and Requirements of Amending the Federal Constitution Amending the Federal Constitution

under Article 159 and 161Eunder Article 159 and 161E

Four methods of amendment as prescribed in the following provisions:

1. Art. 159 (4)2. Art. 159 (5) - Art. 38 (2) (c); (4) & 6 3. Art. 161E (2) – Art. 161E (4)4. Art. 159 (3)



Raja Azlan Shah F.J stated in Loh Kooi Choon:

‘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 purview of Article 159;

(a) any amendment to

Part III of the Second Schedule-PART III

SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP-

or to the Sixth or Seventh Schedule;SIXTH SCHEDULE

-Forms of Oaths and Affirmations-

SEVENTH SCHEDULE-Election of Senators-

(b) any amendment incidental to or consequential on the exercise of any power to make law conferred on Parliament by any provision of this Constitution other than Articles 74 and 76;

(bb) subject to Article 161E any amendment made for or in connection

with the admission of any State to the Federation or its association with the States thereof, or

any modification made as to the application of this Constitution to a State previously so admitted or associated;

(c) any amendment consequential on an amendment made under paragraph (a).

THE GOVERNMENT OF THE STATE OF KELANTAN

V THE GOVERNMENT OF THE

FEDERATION OF MALAYA AND TUNKU ABDUL RAHMAN PUTRA AL-

HAJ[1963] 1 MLJ 355



(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;

A law making an amendment to Clause (4) of Article 10, any law passed

thereunder, - Power of Parliament to pass law prohibiting the questioning of any

matter, right, status, position, privilege, sovereignty or prerogative

established or protected by the provisions of Part III, Article 152,153 or 181 otherwise than in relation to the implementation thereof as may

be specified in such law.-

the provisions of Part III-CITIZENSHIP-

Article 38-The Conference of Rulers-

Article 63(4)- Immunity of MP shall not apply to any

person charged with an offence under the law passed under Clause (4) of Article 10 or with an offence under

the Sedition Act 1948 [Act 15]-

Article 70-Precedence of Rulers and Yang di-Pertua-

Yang di-Pertua Negeri.-

Article 71(1), -The guarantee of the right of a Ruler of

a State to succeed and to exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State;

any dispute as to the title to the succession as Ruler of any State shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State.-

Article 72(4), - Immunity of SLA shall not apply to any

person charged with an offence under the law passed by Parliament under Clause (4) of Article 10 or with an offence under the Sedition Act 1948-.

Article 152-National language.-

Article 153 -Reservation of quotas in respect of services,

permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.-

Article 159(5)



(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 Malaysian State in question;

(a) the right of persons born before Malaysia Day to citizenship by reason of a connection with the State, and the equal treatment;

(b) the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court;

(c) the matters with respect to which the Legislature of the State may (or Parliament may not) make laws, and the executive authority of the State in those matters, and (so far as related thereto) the financial arrangements between the Federation and the State;

(d) religion in the State, the use in the State or in Parliament of any

language and the special treatment of natives of the State;

(e) the allocation to the State, in any Parliament summoned to meet before the end of August 1970, of a quota of members of the House of Representatives not less, in proportion to the total allocated to the other States which are members of the Federation on Malaysia Day, than the quota allocated to the State on that Day.



(4) The amending clause (3) of Article 159 which requires a majority of two-thirds in both Houses of Parliament.’

1983/84 AMENDMENT

CONSTITUTION (AMENDMENT) ACT 1983

ACT A566

CONSTITUTION (AMENDMENT) ACT 1984

ACT A584

CONSTITUTION (AMENDMENT) ACT 1983CONSTITUTION (AMENDMENT) ACT 1983ACT A566ACT A566

Many provisions amended but the controversial are caused by:

Amendment of Article 66

Amendment of Article 150

Amendment of Eighth Schedule

The Malay Rulers The Government

Article 159(5)Article 40(2)Article 38 (2)Article 38 (4)Article 38 (6) (c)Article 71 (1) Article 181 (1)

Article 38 (2)Article 40Article 159 (3)Article 159 (5)

CONSTITUTION (AMENDMENT) ACT 1984CONSTITUTION (AMENDMENT) ACT 1984ACT A584ACT A584

Amendment of Article 66New Provision

Amendment of Article 150Retain old (Pre 1983) provision

Amendment of Eighth ScheduleChanges but not have similar effect as made under

1983 Act

1993 Constitutional Amendment1993 Constitutional Amendment

The Constitution Amendment Bill 1993 passed by the two Houses between 18 and 20 January proposes four main amendments to the sovereignty, prerogatives and immunities of the Rulers.

Firstly, amendments to Articles 32 and 181 seek to remove the immunity of the Yang di-Pertuan Agong and the State Rulers for non-official acts.

Secondly, a Special Court is proposed to try a Sultan who is facing civil or criminal proceedings.

Thirdly, amendments to Article 42 remove the power of a Sultan to pardon himself and members of his immediate family.

Fourthly, amendments to Articles 63 and 72 seek to permit parliamentary discussion of royal misconduct.

Date post:	25-Jan-2015
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Constitutional amendment

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