Professional Documents
Culture Documents
1. Introduction....................................................................................................1
1.1 The Supremacy of Constitution...............................................................1
2. History............................................................................................................4
3. Amendments of the Federal Constitution.......................................................7
4. Four Procedures: Amendment of the Constitution.........................................9
5. Limits on Amendment Power.......................................................................12
6. Conclusion....................................................................................................16
7. References....................................................................................................18
1 QUESTION TWO
PROVIDING FOR ITS OWN AMENDMENT PROCEDURES? See Loh Kooi Choon v
Govt of Malaysia [1977] 2 MLJ 187 and Phang Ching Hock v PP [1980] 1 MLJ 70 FC.
1. Introduction
Constitution defines as the fundamental law written or unwritten, that establishes the
character of a government by defining the basic principles to which a society must conform,
by describing the organization of the government and regulations, distribution and limitations
on the functions of different government departments and by prescribing the extend and
Thus, Constitution which is known as the supreme law of the land has superiority
over the institutions it creates. The term supreme refer to the highest authority and could be
codified and uncodified body of rules governing the people as well as the government.
Therefore, it can be inferred that all laws passed must be consistent with the Constitution. 1
The rule of constitutional supremacy is clearly stated in Article 4(1) of Federal Constitution
where the Constitution is the supreme law in the Federation and any law passed after
Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its
inconsistency.
1
Constitution supremacy in which the law making freedom of the parliamentary
besides it also refers to the system of government. This is due to the Parliaments authority is
defined from the constitution.2 If all the laws passed have to be in line with the constitution
contrast with any provision in the constitution then it could be taken to the court and being
Malaysia due to it is the fundamental and basis law of the land whereby it acts as the
To strengthen the point by referring to the case of City Council of George Town v
Government of Penang,3 the subject argued that the laws made by the Government of Penang,
which are the City Council of George Town Order 1966 and Municipal (Amendment)
Enactment 1966 contravene to the Local Government Election Act (1960). The court held
that, the laws were null and void as referred to Article 75 of the Federal Constitution which
states that any state law that is inconsistent with Federal law shall be void to its inconsistent
On the other hand Article 162(6) deals with any pre-Merdeka law which is
inconsistent with the Federal Constitution shall be continued with the necessary modification
The courts are known to have applied Article 162(6) in the case of Assa Singh v MB
4
Johore which explain the Restricted Residence Enactment being a law relating to public
2 Article 44 of Federal Constitution.
4 [1969] 2 MLJ 30
2
security did not conflict with Article 9 of the constitution. However, as the enactment did not
have any provision similar to Article 5(3) and 5(4), the requirements of these Articles must be
read into the provisions of the Enactment under Article 162(6) of Federal constitution.
Therefore, as we can see, the written law which is the Federal Constitution is regard as the
Next, despite of the Article 159 of the Federal Constitution which allows the
constitution to be amended by the parliament, there are several modes in order to maintain its
supremacy. The power to review the legislative and executive acts is given to the courts. 5 If
their act violates the constitution, the court may declare it void. Article 128 of the
Constitution also gives the power to the superior courts to determine on the validity of
Federal and State Law and invalidate them if it is found to be unconstitutional. We can see in
6
the case of PP v Dato Yap Peng where the accused was charged with criminal breach of
trust. The case was then transfer to the High Court under Section 418A of the Criminal
Procedure Code. The court held that Section 418A of CPC contravene the Article 121(1) of
the Federal Constitution as the power to transfer the case should fall under the jurisdiction of
judicial power. Thus, Section 418A of CPC had violates Article 121(1) of Constitution and
7 Prof Salleh Buang, 2008, The Malaysian bar Article 121 (1) of the Constitution:
Just who was behind that amendment move in 1988. Retrieved from
http://www.malaysianbar.org.my/index2.php?
option=com_content&do_pdf=1&id=16904
3
In overall, the Federal Constitution of Malaysia is the supreme law in Malaysia. Any
law that contradict with the Federal Constitution is said to be null and void. 8 However, the
content of the supreme constitution does not maintain static as there was amendment
provided for the constitution to overcome the difficulties which may encounter in the future
2. History
The history for the amendment of the supreme constitution was first derived from
India. According to the Constitution, Parliament and the state legislatures in India have the
power to make laws within their respective jurisdictions. The Constitution vests in the
judiciary, the power to adjudicate upon the constitutional validity of all laws. If there were
any law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law is invalid or ultra vires.9
Article 368 of the Indian Constitution gives the impression that Parliaments
amending powers are absolute and encompass all parts of the document. This Article dealt
with the procedure of amendment by applying the Basic Structure Principle to maintain the
(Second Schedule, Article 100(3), 105, 11, 124, 135, 81, 137), or by special majority that is
majority of the total membership of each house and by majority of not less than two thirds of
the members of each house present and voting, or by Ratification by the State Legislatures
after special majority (Article 73, 162, Chapter IV of Part V, Chapter V of Part VI, Seventh
8 Article 4(1)
4
Schedule, representation of the State in Parliament and provisions dealing with amendment of
the Constitution).10
The amendment procedures can be classified into two scopes which are rigid and
flexible. Rigid procedures bring the meaning of difficult to amend the constitution like that of
U.S., Australia, Canada and Switzerland. On the other hand, flexible procedure means that
the procedure to amend is easy such as it can just be done by passing a normal legislation like
what has been applied in United Kingdom. Nevertheless, the procedure to be followed in
India is not strictly rigid or flexible as there is a difference in procedure when it affects the
federal character of the Union. Indian Constitution commonly applies the procedure of rigid
but practically has been proved to a flexible one.11 All the amendment can be proposed in
either of the Houses which can generally be enforced by a Special Majority. As for example,
it must be passed by both the houses, with more than 50% of the total members along with
The Supreme Court of India recognized the basic structure concept for the first time
in the historic case of Kesavananda Bharati v. State of Kerala12 in 1973. The Supreme Court
has been the interpreter of the Constitution and the arbiter of all amendments made by the
parliament. In this case, validity of the Twenty-fifth Amendment Act was challenged along
with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the
case of Golak Nath v. State of Punjab13, which denied parliament the power to amend
10 Arun Soni. Legal service india: Amendment of Indian Constitution, Article368.
Retrieved from http://www.legalserviceindia.com/article/l70-Article368.html.
5
fundamental rights of the citizens. The court held that the provisional Parliament is competent
to exercise the power of amending the Constitution under Article 368. The fact of the article
refers to the two Houses of the Parliament and the President separately and not to the
Parliament, does not lead to the inference that the body which is invested with the power to
amend is not the Parliament but a different body consisting of the two Houses.14
The words "all the powers conferred by the provisions of this Constitution on
Parliament" in Article 379 are not confined to such powers as could be exercised by the
provisional Parliament consisting of a single chamber, but are wide enough to include the
This decision is not just a landmark in the evolution of constitutional law, but a
turning point in constitutional history.15 This is because, the Supreme Court declared that
Article 368 did not enable Parliament to alter the basic structure or framework of the
Constitution and parliament could not use its amending powers under Article 368 to 'damage',
'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the
constitution. In addition, the judgement also defined to the extend which the Indian
Parliament could restrict the right to property, in pursuit of land reform and the redistribution
of large landholdings to cultivators, overruling previous decisions that suggested the right to
Besides India, Malaysia also face the controversial issue in the early days for the
probability of the Parliament to amend the Federal Constitution into a new provision which
was contradicted with the content of the original Constitution was set up. Articles 159 and
14Abdul Aziz Bari & Farid Sufian Shuaib, Constitution Of Malaysia: Text and
Commentary
6
161E prescribe four separate procedures to bring changes to specified parts of the basic
charter which are simple majority, two thirds majority assent of Conference of Rulers and
finally get the assents by governors. Three of these four procedures require special majorities.
Two of these four procedures require the consent of institutions or persons outside of
Parliament thereby giving credence to the proposition that in some areas the framers of the
Constitution erected bulwarks against parliamentary majorities and safe-guarded some core,
originally derived from India. There are some basic structure principle in India and
Malaysia that should be applied for the constitution to maintain its supremacy. The supreme
constitution also must provide its own amendment procedures. Parliament's authority to
amend the Constitution, particularly the chapter on the fundamental rights of citizens, was
Article 159 of the Federal Constitution deals with constitutional amendments. In general, the
provision states that the Parliament can amend the Federal Constitution by passing a law.
17
Suffian FJ in the case of Teh Cheng Poh v Public Prosecutor explains that there are many
provisions showing that they realized the Constitution should be a living document, intended
to be workable between the partners that constitute the Malaysia policy, a living document
that is reviewable from time to time in the light of experience, and if need be, amended.
17 [1979] 1 MLJ 50
7
The law which is made in pursuant with 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. However, Article 4 (1) declares that any law that is passed after the Merdeka Day
which is inconsistent with the constitution, shall to the extent of inconsistency, be void.
In the case of Phang Chin Hock v Public Prosecutor 18 The appellant had been
was tried in accordance with the Essential (Security Cases) Regulations, 1975, which were
19
held to be invalid in Teh Cheng Poh v Public Prosecutor but were subsequently validated
by the Emergency (Essential Powers) Act 1979. Then, the appellant made an appeal and
argued that if any Act of Parliament which amends the Constitution, which allowed by Article
159 of the Constitution, inconsistent with the constitution shall render as void. Meanwhile,
the court should read into the Constitution implied limitations on the power of Parliament to
destroy the basic structure of the Constitution if the amendments made by Parliament may be
inconsistent with the existing provisions of the Constitution. Therefore, the court held that
Parliament have power to make constitutional amendments although it was inconsistent with
the Constitution. In interpreting Article 4(1) and Article 159, the rule of harmonious
construction requires the court to give effect to both provisions that is Parliament may amend
the Constitution in any way they think fit, as they comply with all the conditions precedent
and subsequent regarding manner and form prescribed by the Constitution itself.
The issue arise in this particular case was the power of the parliament in amending the
constitution overlap the supremacy of the constitution. This clearly shown in this case when
the provision is still considered as valid even though the provision must be void as the
18 [1980] 1 MLJ 70 FC
19 [1979] 1 MLJ 50
8
inconsistency exist along the article 4(1) which stated that the Constitution is the supreme law
of the Federation and any law passed after Merdeka Day which is inconsistent with this
the constitution are valid if it is consistent with the existing provisions, then nothing could be
change to the Constitution. So, Article 159 is superfluous or unnecessary.20 In contrast, the
other provisions come to realise that the constitution should be a living document intended to
be workable between the partners that constitute the Malaysian polity which is reviewable
from time to time in the light of experience and, if need be, amended.
The rule of harmonious construction requires the court to give effect to both
provisions which are Article 159 and Article 4(1). This shows that Article 159 are considered
valid even it is inconsistent with the constitution. A distinction should be drawn between on
the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in
According to Article 159 and 161E of the Federal Constitution, four separate
procedures are prescribed for bringing changes to specific parts of the basic charter. Three of
these four procedures require special majorities. Two out of these four procedures require the
consent of institutions or persons outside the Parliament thereby giving credence to the
proposition that in some areas the framers of the Constitution erected bulwarks against
9
parliamentary majorities and safe-guarded some core, constitutional values against the power
of Parliament.21
Firstly, under Article 159 (4) paragraph (a) to (c) 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 of these amendments is similar to the procedure for enacting ordinary legislation.
If the Kings withholds their assent, then under amendments made to Article 66 in 1983, 1984
and 1994, the two Houses can bypass the King after thirty days.
amendments which is through two-thirds majority. 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 by the
King.22 If the King refuses assent, it is arguable that he can be bypassed after thirty days
Moreover, under Article 159(5) which explains on the Assent of Conference of Rulers, the
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.23 These provisions are
restriction on free speech prohibiting the questioning of sensitive issues in Article 10 (4);
10
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 Article
63 and 72; precedence of Rulers in Article 70; Rulers 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; and the special procedure for amending the
Constitution under Article 159 (5). Any amending Bill that affects the above matters must be
supported by a special two-thirds majority in both Houses and receive the consent of the
Conference of Rulers. However, 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; or after the King has given his
assent.24 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
Lastly, the Assent of Governors under Article 161E provides that any modification to the
special rights of Sabah and Sarawak requires a two-thirds majority in both Houses of the
Federal Parliament, the assent of the Yang Di-Pertuan Agong and the consent of the
Governors of Sabah and Sarawak. In giving or withholding consent, the Governors are bound
Based these procedures, another issue caome into the surface which on the later event,
in the case of Phang Chin Hock v Public Prosecutor (No 2) 25 where the appellant which is
Phang Chin Hock applied by motion for leave to appeal to the Yang di-Pertuan Agong against
the judgment of the Federal Court. It was argued that section 13 of the Courts of Judicature
24 Ibid,pg.560
11
(Amendment) Act, 1976, which abolished appeals in criminal cases to the Yang di-Pertuan
Agong was invalid because the Conference of Rulers had not given its consent under article
38(4) of the Federal Constitution. In relation to the consent of the Conference of Rulers to
amends under article 159(5), there were several issues have shored up from time to time. In
this case, the court decides that the position of federal monarch is distinct from the position of
and criminal cases to the Yang di-Pertuan Agong does not have to be submitted to the
Conference of Rulers.
On the other hand, the time which an amendment Bill under Article 159(5) to be
submitted to the Conference of Ruler for its assent was still be in unsolved question and
become an issue.26 So, as the nations legislative authority Parliament should have the right to
scrutinise an amendment proposal, debate and discuss it and, if need be, to amend it before
forwarding it to the Conference of Rulers for its assent. 27 The conference must examine the
finished legislative product, not the draft prepared by the Government that is not yet
On a contrary, another issue arise which questioned the role of Yang di-Pertuan Agong
if the Bill is presented to the Conference and is vetoed by them. Nevertheless, in respect of
Article 66(4A) which mention the discretionary power of Yang di-Pertuan Agong to give his
assent to pass the law, has no application or relevance to constitutional amendments under
27 Ibid, pg.558-560
28 Ibid, pg.558-560
12
Article 159(5) and Article 161E. Article 38(4) applies only if an amendment affects the
The Federal Constitution is not just an ordinary statute as it is the supreme law of land
in Malaysia. The word amend is logically means correcting or improving something has
already been created since old days. Furthermore, an amendment enables the correction of
flaws that are revealed by time and practice, it does not mean to reconstruct, replace or
abandoning the fundamental principles of the Constitution. Its provisions are established in
order to maintain the supremacy of the Constitution as the highest law. This is also to put
restrictions into the Articles that give too much unrestrained power for the government. If the
power to repeal or to amend any of the constitutional principles could be done easily by the
authority, there will be no supremacy of the Constitution which the implicit concept of having
Constitution is a supreme power within the legal system and it can reach every rule or
principle of legal system.29 How can it limit itself when the power is indeed supreme and if
so, how can it be supreme anymore? There are obstacles placed for those who would interfere
with the supremacy of the Federal Constitution. Thus, an internal mechanism must be
provided to the special law for growth and change of the current necessities. The mechanism
to amendment of the supreme law should not be too rigid to be accomplished or too easy as to
weaken the safeguards of the basic law as proposed by The Reid Commission. Limits of
amendment power can be divided into two types which are procedural limits and substantive
limits.
13
According to the procedural limits, it has special procedural forms need to be exercised in
peaceful and legal circumstances according to rules established in the Constitution. 30 This is
stated in Article 38, Article 159 and Article 161 of Federal Constitution which shows how a
procedural limitation can be done. The explanation on the four procedures earlier is used for
the changing in certain parts of basic charters.31 Different procedures will be applied by the
In the Federal Constitution of Article 159 is stating about the delegation of State
functions to another State. Then, in Article 159(1) prescribes on the laws that that subjected
to provision of Article 161(E), when effects the position of Sabah and Sarawak in the
federation, it can only be amended with the consent of the Governors of the States which will
be acting on advice of their Chief Ministers. While in Article 159(3) lays down that to amend
any provision, the votes on the Second and Third Readings must not be less than two-thirds
of majority of total number in each House of Parliament. Next, in the Article 159(5) provides
that any amendment of any Articles which touch on the issues such as right, position, status,
sovereignty, privileges on parliament or national language should not be passed without the
consent given by the Conference of Rulers with the specified amount of majority votes.
Next, the substantive limits aims to protect the basic fundamentals of the constitution
which means to preserve the constitutional in its totality.32 The issue arise was whether there
are any implied limits on the Parliaments power to destroy the basic structure of the
31 Ibid, pg.552-560
32 Ibid,pg 563.
14
Constitution in Malaysia? In a case of Mark Koding v PP33, an amendment of Article 63 of
Article, it provides Privileges on Parliament which are meant to free the members from any
This is because the freedom of speech given to the Parliament will eventually
subjected to the law of sedition according to Article 63(4) of Federal Constitution. The
Sedition Act 1948 was to deem necessary of expedient in the interest of the security of the
Federation. The challenge failed and court held that amendments did not concern with the
basic structure. Freedom of speech does not necessarily means that the Parliament is free
from disciplinary action. The privileges are not absolute. The court found that the amendment
had validly limited the privileges of members. This can also be explained in the case of Loh
Constitution. In this case, Loh Kooi Choon who was a Malaysian citizen was detained by the
police under Restricted Residence Enactment 1933 (RRE) and was not brought before the
magistrate within 24 hours as he was supposed according to Article 5(4) of the Constitution
and therefore his detention was illegal. Loh Kooi Choon sued the government for damages
under unlawful imprisonment. His charge against the Government was expected to be
successful. However, Article 5(4) was amended by the Parliament before the Court could hear
appeal. The Federal Court then turned down the argument presented. Therefore, this
amendment shows that the fundamental right regarding the liberty of the person does not
apply to Loh Kooi Choons arrest under the Restricted Residence Laws.
15
Actually, this type of fundamental rights cannot easily be taken away from a person
unless the law requires to do so. If unlawfully detained, the judiciary has the power to release
a person who has been detained, upon a complaint to the High Court. The meaning brought
by the word life is not only to be alive but to get access to quality life.35
This case proves the Supremacy of the Constitution because the Federal Constitution
prevails no matter what the circumstances are. This shows that we ought to respect the law.
However, in this case the Federal Court rejected the argument and held that the Constitution
can be consistent with itself. If there happens a situation where the Parliament retrospectively
have an effect on the pending proceedings or vested rights, then it will be the responsibility of
the appellate court to apply the prevailing law on the date of the appeal. This is before it is
legislate retrospectively, the parliament would within its bounds of its power.
compliance compared to parliamentary supremacy. Malaysian courts are bound to the Federal
Court decision in Loh Kooi Choon v Government of Malaysia 36which gave an upper hand to
the Parliament to enact laws even when it seems to be inconsistent with the Constitution. The
The question whether the impugned Act is harsh and unjust is a question of policy
to be debated and decided by Parliament, and therefore not meet for judicial
determination. To sustain it would cut very deeply into the very being of Parliament.
16
Our courts ought not to enter this political thicket, even in such a worthwhile cause
However, another case which was mentioned earlier, Phang Chin Hock v PP37, the
amendments to the Constitution in 1964 and 1978 were challenged because they increased
the number of appointed Senators very drastically in order to reduce the indirectly elected
These arguments against the substantive and procedural limits invent absolute limits
on the power of amendment by Parliament even though such limits are not clearly provided. 39
It is regarded as just a piece of judicial legislation. A judicial review may be applied to the
constitutional supremacy that requires courts to ensure that the legislature exercises all its
power including amending powers in accordance with the constitution. 41 This judicial review
will accomplish the supremacy of the constitution. 42 This shows that the constitution is
these provisions of amendment limits are not provided, the limited authorities can eradicate
37 [1980] 1 MLJ 70
39 Ibid, pg.563
40 Ibid, pg.563
41 Article 159(1)
42 Ibid,pg.65
17
their own limits at any time as well as there is no purpose of the legislation. It safeguards the
6. Conclusion
will still be from time to time. Basically, in Malaysia which exercised the Constitutional
supremacy, the highest law of the land shall be the Federal Constitution itself which is in
accordance to Article 4(1). However, how can there such amendment which inconsistent is
valid when there is the supreme law. This can be clearly shown in both case of Phang Chin
Hock v PP 43 and Loh Kooi Choon v. Government of Malaysia44 . It seems clear that according
to Malaysian judiciary, a Constitution can be amended in any way the government sees fit,
provided that all the procedures for making constitutional amendments are followed correctly.
Actually, this type of decision does not conform to our natural justice. As such, the
purpose of a Constitution is to determine the very principles upon which country is founded
and governed, there should be a certain spirit of the Constitution that cannot be contravened
or amended. The spirit must be stated clearly in opening remarks. For instance, The Malayan
the country has ostensibly devoted itself to that stated that Federal Constitution aforesaid
provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and
the fundamental rights and liberties of the people and to provide for the peaceful and orderly
Parliamentary democracy. Therefore, the government would not be able to cut down the
43 [1980] 1 MLJ 70
18
rights of Malaysians citizens at their will. Last but not least, it is crucial and indeed
important that there be some founding principles and a fundamental spirit for the country to
avoid losing sight of. Without being tethered to any such principles, the country and its
19
7. References
18