Q.
List out the 4 modes of formal amendment to the Constitution.
A.
1. Amendments requiring a 2/3 majority.
2. Amendments requiring a simple majority.
3. Amendments requiring the consent of the Majlis Raja-Raja.
4. Amendments requiring the consent of the Yang di-Pertua Negeri (Governor) of Sabah and Sarawak.
1. By 2/3 majority of total member. 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 the members of each Dewan on its second and third readings. This may be considered as the common method of amendment.
2. By simple majority present and voting. 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.
3. Consent of Raja-Raja. These are amendments to the "sensitive issues" which means on top of the 2/3 majority requirement, it has to be consented by the Majlis Raja-Raja. These are matters concerning:
- the special position and privileges of the Malays and Natives of Sabah and Sarawak;
- legitimate interests of the other communities;
- citizenship;
- restrictions on freedom of speech in the interest of internal security and public order;
- prohibition of questioning (but not the implementation) of the so-called "sensitive issues";
- laws altering the boundaries of state.
4. Consent of the Governors of Sabah and Sarawak. Constitutional amendments affecting special "safeguards" arrangement for Sabah and Sarawak upon their accession and enumerated in Article 161E require, in addition to a 2/3 majority, the consent of the Yang di-Pertua Negeri of either or both of these states. These "safeguards" include:
- citizenship;
- the constitution and jurisdiction of the High Court in Sabah and Sarawak;
- the appointment, removal, and suspension of its judges;
- state legislative and executive powers;
- federal-state financial arrangements;
- religion;
- the national language;
- the special treatment of natives of the states;
- entry and residence in the state.
Thus, in West Malaysia, states play no part in the amendment process unless it involves boundaries of state. Therefore, federal constitution amendment is binding to all state in West Malaysia as a whole, and state legislative assembly has no part in the amendment process. Unlike West Malaysia, the Sabah and Sarawak State Parliaments have much influence in amendment to the Federal Constitution.
Lastly, it was intended by Reid Commission that Dewan Negara (Senate) was to be watchdog for the constitutional amendment as it put the majority of Dewan Negara to be approving a constitutional amendment (see Amendment to the Constitution (2). However, as state representation in the Dewan Negara (2 indirectly elected senators from each state) becomes less than the appointed representation, the appointed senators would be very much bias with opinion aligned to their ruling political parties. As the amendment is pushed through by the Dewan Rakyat, the same would be in the Dewan Negara.
Ref:
Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 47-50.