4 basic features lecture

THE BASIC FEATURES OF THE
CONSTITUTION OF MALAYSIA

The

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BASIC FEATURES of

the Constitution of
Malaysia are as follows:

Written constitution
Supreme constitution
A federal system
Fundamental rights
Emergency powers
Constitutional monarchy
Conference of Rulers

Basic Features
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Affirmative action
Special amendment procedures
Parliamentary Government
Electoral democracy
Elected Parliaments
Bicameral parliament at federal level

Basic Features
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Islam
Independent judiciary
Impartial public services
Indigenous features
Partly rigid, partly flexible
constitution

1. Written Constitution
2. Constitutional Supremacy
• The Constitution declares itself to be
the supreme law of Federation.
• The legislation passed after it came
into effect which is inconsistent with
the terms of the Constitution is void.
(Article 4(1), Federal Constitution).


Article 4(1)
Post-Merdeka Laws which
conflicts the Federal
Constitution is void as to the
extent of the inconsistency.


B. Surinder Singh Kanda v The Government
of Federation of Malaya
[1962] MLJ 169

Lord Denning made the following remarks:

‘The Federation of Malaya came into being
on Merdeka Day, that is 31st August 1957.
Thenceforward the Constitution was the
supreme law of the Federation (Article 4).’


Article 162 (1) & (6)
(strengthened art 4(1))

Pre-Merdeka Laws remains valid
until repealed or amended. Courts
can apply the law with the necessary
modifications to bring it in line with
the Constitution.


Assa Singh v Menteri Besar, Johore [1969] 2 MLJ
30

The relationship between Articles 4 &
162 of the Federal Constitution was
discussed & given better treatment.


Judicial Review
Articles 4(3), 4(4), 162(6), 128(1) &
128(2) confer power on superior courts
to determine the constitutional validity
of federal & state laws & to invalidate
them on the ground of
unconstitutionality.


Article 128
The power of determining the
validity of legislation is in the
Federal Court.

3. Federal System of Government
• Unlike the unitary system in the
UK and Singapore, Malaysia has
a federal form of government.


There is division of legislative,
executive, judicial and financial
powers between the Centre and the
States though the weightage is
heavily in favour of the Centre.


Federal Features

(a) association of states – retain independence of

action in certain affairs & involve commitment to partnership

(b) duality of government – each citizen is subject to 2

governments & principle of ‘non-centralisation’=division of
competence between the centre & the states is constitutionally
entrenched & cannot be disturbed unilaterally.

(c) semi-autonomous units – retaining individuality &

seek advantage of a common government in matters of general
interest.


Federal Features

(d) demarcation of powers – constitutionally defined

division between legislative, executive, judicial & fiscal powers
between central & regional authorities. Powers of federal &
provincial government must be well defined.

(e) supreme constitution – federal-state allocation of
powers is safeguarded by adopting a written Constitution.

(f) judicial review – superior courts are given power to
declare null & void any legislative/executive action that
violates the constitution.


Federal Features

(g) amendments – a federal constitution should be
difficult to amend except by extraordinary procedures.

(h) equality – equality of status amongst the constituent
States of the federation & coordinate with each other.


Article 73
Exercise of legislative powers: Federal
–
Parliament may make laws having effect
outside & within the Federation

State –

State Legislative Assembly may make laws for
whole/ any part of that State.


Article 74 (1) - List I, II, III of Ninth
Schedule
Subject matter of legislation divided
between Federal (Federal-1st /Concurrent3rd) List & State (State-2nd/Concurrent-3rd)
List.


Schedule
Federal List covers external affairs,
defence, internal security, citizenship,
finance, trade, commerce, shipping,
navigation & fisheries on the high seas.

Article 74 (1) - List I, II, III of Ninth Schedule
State List covers Muslim law, land tenure,
Malay reservation, agriculture, forestry, local
government, turtles & riverine fishing.
Islamic matters under federal power are Islamic
pilgrimage, Islamic banking & takaful.


Schedule
Concurrent List covers welfare,
scholarship & drainage.


Mamat bin Daud & Ors v Government of
Malaysia [1988] 1 MLJ 119, SC

The case discussed the problem in
determining competency of legislative
bodies when a law passed seem to fall
under both federal and state legislative
power.


Article 75
Inconsistency between Federal &
State Law, Federal Law prevail &
State Law void as to extent of
inconsistency.


The City Council of George Town & Anor v
The Government of the State of Penang & Anor
[1967] 1 MLJ 169, FC

In this case the Municipal (Amendment) (Penang)
Enactment 1966 was passed by the Penang State
legislature. The petitioner claimed that the
Enactment and related Orders were inconsistent
with Local Government Elections Act 1960 and
therefore void.


[1967] 1 MLJ 169, FC

The Court applied Article 75 and agreed that the
Enactment and related Orders were void.
It should be noted that art. 75 is not applicable if
Parliament has no power to pass the relevant
federal law.


[1967] 1 MLJ 169, FC

In this case federal law may be challenged first as
being inconsistent with the Federal Constitution.
Alternatively the federal law could be construed
in such a way that it is within the competency of
Parliament.


[1967] 1 MLJ 169, FC

Federal law – Local Government Act 1960
(Parliament) (consistent with Federal Constitution?)
vs
State law – Municipal Enactment 1966 (Penang
State Legislature)


Article 76
Power of Parliament to legislate for
states in certain cases. eg. to ensure
uniformity.


Lim Chee Cheng & Ors v Pentadbir Tanah
Daerah Seberang Perai Tengah, Bukit Mertajam
[1999] 4 MLJ 213, CA

The Court of Appeal heard an appeal
involving the National Land Code, it was
contended that the Code was not
applicable to Penang since it was never
adopted.


Lim Chee Cheng & Ors v Pentadbir Tanah
Daerah Seberang Perai Tengah, Bukit Mertajam
[1999] 4 MLJ 213, CA

Abu Mansor JCA observed that ‘…as the
National Land Code 1965 was enacted by
Parliament at the request of all States
under art. 76 (4) of the Federation
Constitution for the sake of uniformity,
the question of adoption did not arise…’


Article 77
Residual power lies with the State
Legislative Assembly.


Article 77
Reid Commission Report provided that the

consequence of granting the residual powers to State
is that ‘if some unforeseen matter arises

which is so peculiar that it cannot be
brought within any of the items
mentioned in any of the Legislative Lists,
then that matter is within the State
powers’.

4. Fundamental rights
• The Constitution, in Articles 5 to 13
and elsewhere, protects a large
number of political, civil, cultural
and economic rights.

• Article 5
Life & Personal Liberty
• Article 6
Prohibition of slavery & forced
labour

• Article 7
Protection against retrospective
criminal laws & repeated trials
• Article 8
Equality

• Article 9
Prohibition against banishment &
freedom of movement
• Article 10
Freedom of speech, assembly &
association

• Article 11
Freedom of religion
• Article 12
Rights in respect of education
• Article 13
Rights to property

• Restrictions
• However, these rights are not absolute
and are subject to such extensive
regulation by Parliament that their
description as ‘fundamental’ poses
problems in political philosophy.

• Restrictions in the respective
articles

• Restrictions
• Article 149
To combat subversion

• Article 150
To combat emergency

• Article 159
Amendments to the Constitution

5. Emergency powers
• The communist insurgency cast a dark
shadow on constitutional development.
• The forefathers of the Constitution,
through Articles 149 and 150, armed
Parliament and the executive with
overriding powers to combat subversion
and emergency.

5. Emergency powers
• Articles 149 and 150 allows for the laws
made under them inconsistent with
other provisions of the Federal
Constitution including provisions under
the fundamental liberties.
• Articles 149 and 150 are not related and
independent of each other.

5. Emergency powers

• Article 149
Legislation against subversion, action
prejudicial to public order, etc. including to
promote feelings of ill-will & hostility between
different races or other classes of the population.

Legislation valid even though it infringes
Articles 5,9,10,13 or outside legislative
power of parliament.

5. Emergency powers

• Article 149
The relevant laws associated with art 149 are the
Internal Security Act 1960 and the Dangerous Drugs
(Special Preventive Measures) Act 1985. (cannot be
challenged~Jamaluddin [1989] 1 MLJ 368)
Draconian effect: s 73 of the ISA provides that a police

officer may without a warrant arrest a person if he has
‘reason to believe’ that there are grounds… that person has
acted or is about to act or is likely to act in any manner
prejudicial to the security of the country. He can be detained
up to 60 days.

5. Emergency powers
• Article 149
Reid Commission Report and the
speeches made by the late Prime
Minister Tun Abdul Razak when moving
the motion in Parliament to pass the
Internal Security Bill contended that the
application of art 149 should be
restricted to communist insurgencies.

5. Emergency powers
• Article 149
In the case of Theresa Lim Chin Chin [1988] 1
MLJ 293, SC, the Supreme Court decided that art
149 is not restricted to communist insurgencies.
Mohamad Ezam [2002] 4 MLJ 449, FC decided to
follow Theresa and Mohamed Dzaiddin CJ
explained ‘… more directed to communist activities
which was prevailing at the time the law was enacted.
The long title and the preamble indicate that it is not
confined to communist activities alone…’

5. Emergency powers
• Article 150
Proclamation of Emergency by the Yang
Dipertuan Agong. Legislative made
expressly during emergency is valid even
though it infringes any constitutional
provisions. The legislation made during
emergency ceases to have effect 6
months after Emergency ceases.

5. Emergency powers
• Article 150
In Stephen Kalong Ningkan [1968] 1 MLJ
119, FC, the petitioner questioned the
proclamation of emergency made for the
state of Sarawak. The Privy Council did
not find it necessary to decide whether
the proclamation was justiciable.

5. Emergency powers
• Article 150
The issue of justiciability would most probably
be settled now with the insertion of clause 8
under art 150 through a constitutional
amendment in 1981 which provides that ‘the
satisfaction of the YPDA… shall be final and
conclusive and shall not be challenged or
called in question in any court on any ground’.

6. Constitutional Monarchy
• The Yang di-Pertuan Agong & the State
Rulers are required by Federal & State
Constitutions to act on the advice of the
elected government in the whole range of
their constitutional functions except in a small
area where personal discretion has been
conferred.
• Even in this area constitutional conventions
limit royal discretion. In the overall scheme of
the Constitution, the monarchs are required to
reign, not to rule.

6. Constitutional Monarchy
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Article 32(1)
Yang Dipertuan Agong is Head of the Federation
Article 40(1)
In exercising his powers, the Yang Dipertuan Agong
would act on the advise of the cabinet.
Article 4 (2)
Discretion in certain areas:

a. Appointment of PM
b. Witholding consent for dissolution of Parliament
c. Requisition of meeting of Conference of Rulers.
Exercise of discretion limited by conventions

7. Conference of Rulers
• The primary function of this unique
institution is to elect and remove the Yang
di-Pertuan Agong, elect the Timbalan Yang diPertuan Agong, consent or refuse to
consent to some constitutional amendments,
and to offer advice on some appointments.

• Article 38 & Fifth Schedule
• Artcile 38 (2)(a)
Election of Yang Dipertuan Agong & Timbalan
Yang Dipertuan Agong
• Article 38 (2)(b)
Agreeing or Disagreeing to extension of
religious acts, ceremonies, observances to the
whole Federation

• Article 38 (2) (c)
Consent or witholding consent to laws or
amendments which require Conference of
Rulers approval
• Article 38 (2) (d)
Appointment of Special Court members
• Article 38 (2) (e)
Granting pardons etc.

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(a)
(b)
(c)
(d)
(e)
(f)


Article 38 (3)
Deliberate on matters of national policy & others
Article 38 (5)
Consulted before any change affecting
administrative action under art 153
Article 38 (6)
Discretion relating to
election/removal of YDPA/Timbalan
advising any appointment
giving/witholding consent to any law affecting privileges or dignities of the
Rulers
agreeing/disagreeing any religious acts/ceremonies to the Federation
appointment members of Special Court under art 182
granting pardons etc

8. Affirmative action
• What is an affirmative action?
• It is also known as special privileges,
positive discrimination or reverse
discrimination.
• India, Cyprus, America & Malaysia are
prominent examples of countries with
such schemes.

• It is a scheme of preferential treatment
to elevate the status of economic, social
or culturally backward communities or
sections of society like women, children,
aboriginines, ‘untouchable’, minorities or
other marginised groups.

• It becomes one of the unique features
of the Constitution - affirmative action
policies in favour of Malays and the
native of Sabah and Sarawak are
entrenched in the basic law.

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Affirmative action is allowed only in areas
permitted by the Constitution.
• The policy operates at three levels:
(1)They protect minorities like the Orang Asli
(abroginies) & the native of Sabah &
Sarawak.
Article 153 provides for reservation of quotas in
respect of services, permits, etc., for Malays &
natives of any of the States of Sabah & Sarawak
including scholarship, educational aids & admission
to public services.

• The policy operates at three levels
(2) At the territorial level they give to the
regions of Sabah & Sarawak special
privileges in relation to the other states of
the federation.
Article 112C provides for special grants & assignments of
revenue to States of Sabah & Sarawak, specified in Part IV &
V of 10th Schedule including import duty of petroleum
products.
Article 95B provides for a Supplementary State List
(including social welfare, scholarship, town & country
planning) & Supplementary Concurrent List (including
personal law relating to marriage & divorce & election to
the State Assembly)

The policy operates at three levels
(3) They mandate special privileges for the
politically dominant but economically
depressed Malay majority.
Article 153 provides for reservation of quotas in
respect of services, permits, etc., for Malays &
natives of any of the States of Sabah & Sarawak
including any licence for operation of any trade or
business.
Article 89 & 90 provides for matters of the Malay
reservation of land.

9. Special Amendment Procedures
• Unlike ordinary laws which can be amended or
repealed by simple majorities of legislators present
and voting, most constitutional provisions are
entrenched against easy repeal.
• Article 159 (3)
2/3 majority vote of total members of Parliament.
• Article 38 (4)
Requires consent of the Rulers

• Article 159 (5)
Amendments to these following clauses must with the
consent of the Conference of Rulers :
• Article 10(4) (interest of security) and any laws made under it,
Part III provisions
• Article 38 – Conference of Rulers
• Article 63(4) – Privileges of Parliament
• Article 70 – Precedence of Rulers & Yg. Dipertua Negeri
• Article 71(1) – Federal Guarantee of State constitution.
• Article 72(4) – Legislative Assembly Privileges.
• Article 152 – National Language
• Article 153 – Reservation of Quotas for Malays & Native of
Sabah & Sarawak.

• Article 161 E
Safeguards for Constitutional position of
Sabah & Sarawak. Need consent of Yang
Dipertua Negeri.
• Article 2 (b) – state boundaries
Need consent of State Legislative Assembly.

• In short, special 2/3 majorities is required. In respect
of some provisions, the consent of the Conference
of Rulers or of the Governors of Sabah and
Sarawak is also mandated.
• However, unlike Australia the amendment
procedure does not require the consent of the
people at a referendum.
• Referendum – national referendum are binding polls
held to approve government proposed changes to
the Australian constitution. The bill must achieve a
double majority: a majority of those voting
throughout the country.

10. Parliamentary Government
• Unlike the system of independent
government in the USA (The Washington
system) which is built on a rigid,
institutional separation between the
executive and the legislature, in Malaysia the
government is part of parliament, is
answerable, accountable and responsible to
it and can be dismissed on a vote of noconfidence by the lower House.

• In the US, for example, appointment by the
President are subject to ratification by the
Senate. The legislative power by the Congress
can be checked by the President through a
veto. In turn, the Congress can override the
President’s veto by a two-thirds majority in
both houses.

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In the British system (Westminster system) there is
no strict separation between the political,
executive & the legislature.
• A legislature in a parliamentary democracy has 3
main functions:
a) To make laws
b) To control public expenditure
c) To provide the forum to make the government
accountable to the electorate.

11. Electoral Democracy/ Election
• The Constitution provides for periodic elections &
an independent Election Commission.
• Article 55 (3) & Article 55 (4)
Parliament shall continue for five years from date of
first meeting & then stand dissolved. Once
Parliament is dissolved, general elections must be
held within 60 days from date of dissolution &
Parliament shall be summoned to meeting not more
than 120 days from that date.

• Article 43 provides for the request by the Prime
Minister to the Yg di-Pertuan Agong for dissolution of
Parliament
• Part VIII provided 9 provisions (articles 113-120)
which include the appointment of an election
commission, principles governing delimitation of
constituencies, registration of voters & so on.
• Article 119 - Qualification of electors – a. 21 years of
age b. resides in a constituency or absent voter c.
registered in the electoral roll.
• Article 113 & 114 - Elections conducted by an
independent Election Commission

• Recent issues
• An anti-hopping law
Datuk Zaid Ibrahim has proposed such a law. States
of Kelantan & Sabah had an anti-hopping law.
Kelantan law had been challenged as being in
violation of the constitutional freedom of association
under Article 10(1)(c) of FC.
In Nordin Salleh v Dewan Undangan Negeri Kelantan
[1992] 1 MLJ 343, the decision is defensible
especially on the issue that the ‘morality’ restriction
of art 10(2)(c) refers to merely sex morality.

• Recent issues
• Third tier of government
Do the people need local government elections?
Schedule 9 List II Paragraph 4(a) provides the State
governments have power over local government
elections. Hostile federal law enacted under Article
76 (1)(b) & (4) Emergency (Suspension of Local
Government Elections) Regulation 1965 – dispensing
with local authority elections.

12. Elected Parliaments/
Bicameral Parliament
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A central feature of any constitution is the
organisation of the legislature.
It may be a unicameral body with one chamber or
a bicameral body with two chambers.
Unicameral legislatures are typical in small
countries with unitary systems of government
including Denmark & New Zealand.
Federal states, whether large or small, usually have
bicameral legislatures. The classic example is the
Congress of the United States which consists of a House of
Representative and a Senate.

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The Malaysian federal legislature – Parliament – is
bicameral; it has 2 houses:
a) The appointed Senate, the upper house or the
Dewan Negara &
b) The popularly-elected House of Representative, the
lower house or the Dewan Rakyat.
• At the state level, the legislature – known as state
legislative assemblies – is unicameral.

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Article 44 provides for the existence of federal
parliament consisting of the YDPA, the Dewan
Negara & the Dewan Rakyat.
Article 45, the Dewan Negara consists of 70
Senators. 44 are appointed by the YDPA & 26 are
elected by the State Assemblies according to 7th
Schedule.
Article 46, the Dewan Rakyat consists of 222
elected members according to Art 46(2) –
allocation to each state takes note of several
factors including size of population & territory.

13. Islam
• Islam is the religion of the federation but there is
freedom to other communities to practise their
own religions in peace and harmony.
• Article 3 – Islam as official religion.
• Schedule 9, List II, Paragraph 1 State Legislature are

permitted to legislate for the application of Islamic laws to
persons professing the religion of Islam in a variety of areas
including personal and family laws, succession, betrothal,
marriage, divorce, dower, maintenance, adoption, legitimacy,
guardianship, gifts, partitions, trust, zakat fitrah, baitulmal,
similar Islamic religious revenue & mosques.

13. Islam
• The State legislatures are also authorised to create &
punish offences by Muslims against the percepts of
Islam except in relation to matters within the
jurisdiction of the federal Parliament.
• Syariah Courts may be established by State Law & it is
declared that they shall have jurisdiction only over
persons professing the religion of Islam. In the
exercise of powers within their jurisdiction, Syariah
courts are independent of the civil courts: Article 121
(1A).

13. Islam
• Issues
• Islamic State Debate
• Inter-religious marriages
Non-Muslims seeking to marry Muslims have
to convert to Islam if the marriage is to be
allowed to registered. Several troublesome
cases of apostasy by Muslims who wish to
marry non-Muslims counterparts. The Lina Joy
case is the most divisive one [2007] 4 MLJ 585

13. Islam
• Emerging Issues
• Atheism
Does right to believe include the right to
disbelieve & to adopt atheism? In Malaysia,
the Rukun Negara declares belief in God
(‘Kepercayaan kepada Tuhan’) as a cardinal
part of national ideology. The mandatory
application of Syariah laws to Muslim in many
areas makes it possible to argue that atheism
is not protected by Article 11 – at least not for
Muslims.

14. Independent Judiciary
• The overall constitutional scheme is to devise
institutional and functional separation of the judicial
organ of the state.
• In a democratic society, courts supply one of the
most prominent mechanism for protecting the rights
and liberties of citizens.
• Public confidence in the integrity, impartiality and
independence of the judiciary is, therefore, vital.


• In traditional constitutional theory, independence of
the judiciary connoted independence from the
executive.
• We are now learning that a judge’s freedom of action
can also be threatened by pressures from within the
judicial branch.
• In Likas election case, the judge complained that he
had been instructed on the phone by the Chief Justice
of the Federal Court to dismiss the application
summarily. The learned & courageous judge refused
to obey the instruction & went on to censure (strong
criticism) the conduct of the Election Commission:
Haris Mohd Salleh v Ismail Majin [2000] 3 MLJ 434.

• In addition, the challenge to judicial integrity
from private centres of power cannot be
discounted.
• In late 2007, a video clip emerged showing a
prominent lawyer in conversation with a
‘Datuk’ about an elaborate scheme to broker
judicial appointments and promotions with the
help of a business tycoon and several ruling
party politicians: The Star, 22 September 2007.


• The following safeguards for judicial independence
have been incorporated.
• Article 122B, 122C, 123 & 125(3)
Appointment, qualifications, dismissal of judges.
Method of appointment -Article 123 prescribes 2
formal rules of eligibility for appointment of the
Federal Court, Court of Appeal & the High Court.
a) the nominee must be a citizen.
b) he/she must possess the minimum professional
experience of being ‘for the 10 years preceding his

appointment… an advocate of (the) courts… or a member of
the judicial and legal services of the Federation or of the legal
service of State…’

• Article 122B
Article 122B requires an extensive, multi-layered
process of consultation between the Prime Minister,
senior-most judges, the YDPA & the Conference of
Rulers.
• The Judicial Appointments Commission is recently
being debated in the Parliament.
An impartial Judicial Nomination Commission should
be appointed to conduct merit evaluation & to
recommend names to the government.

• Security of tenure - Article 125 (3) & (4)
Procedure for a dismissal of a judge.
A YDPA may appoint a judicial tribunal of not less
than 5 local/Commonwealth judges to investigate
the allegation & to make recommendations on the
case.
Under art 153(3), the initiative for the appointment
of the tribunal can come from the Prime Minister as
in the case of the tribunal to try Tun Salleh Abbas in
1988.

• Terms of service - Article 125 (1) & (7)In Malaysia
superior court judges enjoy terms of service that are
more favourable than those of civil servants.
• Insulation from politics – to protect the judiciary
against politically inspired criticisms.
Article 127
The conduct of High Court, Court of Appeal, Federal
Court judge cannot be discussed in Parliament or
State Legislative Assembly.

• Contempt of court - Article 126
Power of the High Court, Court of Appeal & Federal
Court to punish for contempt of court.
• Judicial immunity
In performance of their judicial functions all judges
are immune from the law of torts and crime.
• Court system
The existence of courts, the judicial hierarchy and the
jurisdiction & composition of the courts are
prescribed by the law & are not open to tampering by
the executive.

15. Impartial public service
• Civil servants are required to maintain a reserve
in politics.
• Their term in office is unaffected by the rise and
fall of governments.
• Article 135 (1) & (2)
Restrictions are placed on dismissal & reduction in
rank of civil servants
• Civil servants must maintain a neutral stand in
politics.
• Civil servants term of office will not be effected by
change of government.

16. Indigenous features
• For hundreds of years, Malaya has been
the homeland of the Malays. It is
understandable, therefore, that when the
Merdeka Constitution was drafted it
reflected a number of features indigenous
to the Malay archipelago, among them are:
• Article 38, 70, 71 - Malay Sultanate
• Article 3 - Islam as official religion

• Article 153 - Malay privileges
Note that art 153(1) actually concerned about
protecting ‘the special position of the Malays &
natives of any of the States of Sabah & Sarawak &
the legitimate interests of other communities.’
It appears that there ought to be a balance between
these competing interests. In other words it not
quite the question of according privileges to the
indigenous all the time & on all occasions.
• Article 89 & 90 Malay reservation land

• Article 152 - Bahasa Melayu as the National
language of the federation
Subject to some practical exemptions such as
dealings with international community which
necessitate the use of other languages including
English and Arabic.
In recent years there have been policies which
apparently not in conformity with art 152. A good
example being the decision of the federal
government to use English as the medium of
instruction for Science & Mathematics in school. This
decision has been revised recently.
• Article 150 (6A) - special protection for the Malay
customary laws.

18. Partly rigid, partly flexible
constitution
• Rigidity
Provisions are entrenched to protect against
easy appeal.
Article 159 (3)
2/3 majority vote of total members of Parliament.
Article 38 (4)
Requires consent of the Rulers

However, difficult to make changes to adapt
to current situations in the country.

constitution
• Flexibility
Article 159 (4)
Some matters are excepted from the provisions of
2/3 majority as follows:
a) Part III of 2nd/ 6th/7th Schedule
b) Parliament exercise its power under the
Constitution other than Arts 74 & 76
c) subject to art 161E relating to admission of any
State to the Federation
d) any amendment as a result of other amendment
made under paragraph (a)

constitution
• Raja Azlan Shah FJ in Loh Kooi Choon explained 4
processes of amendment where he said:
‘Our Constitution prescribes four different methods
for amendment of 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
the 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;

constitution
• Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of
amendment where he said:
‘…2) The amending clause (5) of Article 159 which requires a
two-thirds majority in both Houses of Parliament & the
consent of the Conference of Rulers;
3) The amending clause (2) of Article 161E which is 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 majority in both Houses of Parliament.’

constitution
•

1)
2)
3)
4)

Raja Azlan Shah FJ in Loh Kooi Choon
explained 4 processes of amendment where
he said:
Simple majority
2/3 majority + Conference of Rulers
2/3 majority + Governors of East of M’sia
2/3 majority of both Houses

4 basic features lecture

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