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 to weaken seriously the safeguards which the Constitution provides

(Reid Commission Report, para 80, p.33)

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

The Federal Constitution, after the formation of Malaysia, provides for its amendment in Article 159 and
161E. These set out four different modes of amendment, according to the provision which is sought to be
amended. They are discussed below.

These four modes prescribed in the constitution itself are formal methods of amendment. In such a method
the words in a constitutional provision undergo change. In addition to formal modes, there are informal
modes of amendment. Judicial interpretation, where the words in a constitutional provision do not change
but their meaning undergoes a change resulting from interpretation by the court, is an informal mode of
amendment. Another is through the evolution of constitutional conventions.

Most provisions of the constitution can be amended by a Bill enacted for that purpose and which is
supported by not less than two-thirds of the total number of members of each Dewan on its second and
third readings. This may be considered as the common method of amendment.

Certain provisions of the constitution can be amended by an ordinary Bill, which is supported by a simple
majority of members present and voting in each Dewan. These provisions are set out in Article 159(4). They
cover some matters of considerable importance, e.g. the admission of any state to the federation, the
composition of the Dewan Negara, and the rules concerning the election and retirement of its members,
restriction of freedom of movement within the federation, and of freedom of speech, assembly, and
association; and creation of inferior courts, and the jurisdiction and powers of the High Courts and inferior
courts.

The amendment of a number of provision require, in addition to a two-third majority, the consent of the
Majlis Raja-Raja. These provisions, considered the most important in the constitution, concern what are
called sensitive issues: the Majlis Raja-Raja itself, the precedence of Rulers and Governors, the federal
guarantee concerning the institution and succession of Rulers, the special position and privileges of the
Malays and natives of Sabah and Sarawak, legitimate interests of other communities, and citizenship. The
spectrum of provisions was expanded in 1971 to include provisions concerning restrictions on freedom of
speech in the interest of internal security and public order, and any law passed thereunder prohibiting the
questioning (but not the implementation) of any of the so called sensitive issues. A law altering the
boundaries of a state also requires the consent of the Majlis Raja-Raja, in addition to the consent of the state
itself.

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 the
Yang di-Pertua Negeri of either or both of these states, as the case may be. These safeguards concern
citizenship; the constitution and jurisdiction of the 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 the special treatment of natives of the states; and entry
residence in the state.

To recapitulate, in its first fifty years, the Federal Constitution was amended no less than forty times in
minor and major aspects. The effect of some of these have cause concern. Nevertheless, Malaysians can
take comfort in the fact that despite crises and emergencies the Federal Constitution, albeit dented, has
survived. And, it may yet sure survive the next fifty years provided Malaysians honour and respect the social
contract so painstakingly put together by the parties who negotiated for independence.