Constitutional Law - Amendment of the Constitution


1. Historically the centralization of the subject occurred in 1911 and then there was freedom movement who fight for independent. A forum to make a constitution was formed. The forum adopted Westminster style based on Montique idea ie separation of powers.

2. In contrast the American style of Constitution is different from the Westminster. That constitution is meant for pluralistic society.

3. Therefore the Reid Commission decided to adopt Westminster style. The founder of the constitution were in one hand influenced by Westminster model and on the other hand they knew well the merits of a written constitution. Since in Malbury v Madison it was clearly laid down that there should be a different between ordinary law and Constitutional law. This could be possible only if the Constitution is to be declared to be supreme. Hence the amendment of the constitution should be different than the ordinary law.

4. Impress by this Reid Commission in para 80 recommended that the amendment of the constitution should not be difficult that it becomes frustrated and it should not be easy that constitution losses its meaning. So a flexible method was emphasized.

5. This was adopted by the court in the case of Loh Koi Choon v Govt of Malaysia. It was held that the law is evolving because people multiply day to day. It is necessary that the nature method of amendment should be flexible.

Method of Amendment (Article 159 & 161E(2)) of Federal Constitution

1. By simple majority – admit a state to Federation, restriction of freedom of movement in federation, speech assembly; alter composition of Dewan Negara etc.

2. By 2/3 majority in Both Houses and Consent from the Conference of Rulers

3. By 2/3 majority in both Houses and consent from Governor of Sabah or Sarawak (matters relating to that states ie citizenship, resident, bornthere, court suspension of judges.

4. By 2/3 majority in both Houses (Article 159(3) of Federal Constitution) the support must be during second and third reading. This also called ordinary method of amendments. Most of the provision in constitution are amended by this ways.

Reid Commission Proposal

It was desired by the commission that any Bill amendment pilot in the Dewan Rakyat and receive 2/3 majority vote on all 3 readings, should not prevail upon the Dewan Negara. If fails to acquire 2/3 majority of this House.

However situation evolve in Malaysia. The ratio of Dewan Negara’s composition since 1957 particularly when Singapore, Sabah and Sarawak joint to Federation. Now have 26 elected/26 selected. Before 22 elected and 16 selected. This number keeps on increasing. The ratio under Article 45 or Federal Constitution is 29 : 40.

This amendment process can be understood clearly when we touch certain important features of the constitution case laws. We are fundamentally governed by principle of Ferealism ie :

1. Supremacy of constitution

2. Division of powers between central and state

3. Non concentration of powers into the hands of single individual

State of Kelantan v Govt of FMS & Tg Abdul Rahman – Thompson J : Federal Government had not done something revolutionary that the constitution of state of the Federation. The Constitution does not provides for it and the amendment to Article 1 & 2 of Federal Constitution as such was the constitutional process.

The same judge observes further that if the unit of the Federation feel that they have given ample to the Federation, it is their misfortune. They may limit it if they do desire only by the amendment to the constitution. The expression uttered by the Judge alarming in the sense does it means that a revolutionary changes need the approval of the constituent and the federation but it so happen that the period between 1965 to 1971 changed the whole context of the amendment process. In 1971 the constitution was amended and this amendments mainly touch on Article 38, 70, 71, 64(4), 10(2)(a) and 152 of Federal Constitution.

Retrospective Application and Amendment

Amend constitution today but have effect since before. Is this legitimate.

Azlan v Govt of Malaysia – A police constable who was having a private vehicle and put it on road. Using it as a taxi. A report was made and disciplinary action was taken by Police Supt. and dismiss him. Under Article 140 police comm. has power to appoint dismiss. Accused pleaded that Supt has no power to dismiss because High Court ruled in favor for Azlan. State then appeal till Privy Council. Meanwhile the Constitution was amended. Amendment made in 1973 but retrospective effect from merdeka day. All Police Officer was given power to dismiss. Whether can have retrospective effect. This plea should have been made in lower court. Since not brought in lower court, the appeal court did not entertain.

General Comment

The court generally takes into consideration whether or not to permit retrospective application by the amendment. This particular problem came for discussion in a couple of cases. Namely Azlan b Usman v Govt of Malaysia. Where the court have ruled in favor of the petitioner but at appellate court the Government pleaded the amendment to Article 140 of Federal Constitution be considered which the court legitimately considered the after effect of amendment to Article 5(4) of Federal Constitution and continued that the judiciary should not involve itself in political ticket but interpret the provision of the law.
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