Amending the Constitution

By Hakim Joe

Amending the Constitution is an extremely complicated undertaking as it is within the Constitution that is written the fundamental principles in which laws are enacted to govern a country. Amend a single paragraph of the Constitution and any legislation that is either directly or indirectly influenced by it will subsequently necessitate amendment(s) as well.

When a country achieves independence in a democratic environment, the primary document that is prepared is the Constitution, not the laws, and from this Constitution rests the very foundation in which how legislations are enacted and how the country shall be ultimately governed.

It is the definitive framework in which the winning political party utilizes to establish the government. It is the structural fabric in the determination of how the citizenry will be administered and it institutes the relationship between the Federal, State and Local Governments. The Constitution additionally separates the power of the
Executive Branch from the Judiciary and is the supreme law of the nation.

As with our Constitution that is both a codified and an entrenched document, amending it will mean adherence to the procedures that are both complicated and onerous. It is also subjected to four categorization, as provided by Article 159 and Article 161[e], in which the Constitution can be amended by Federal Law.

One, certain provisions may be amended only by a two-thirds (Article 159[3]) absolute majority in each House of Parliament (Dewan Rakyat & Senate) but only if the Conference of Rulers consents.

Two, certain provisions of special interest to East Malaysia, may be amended by a two- thirds absolute majority in each House of Parliament but only if the Governor of the East Malaysian state concurs.

Three, all other provisions may be amended by a two-thirds absolute majority in each House of Parliament (subject to the exception described in item four below), these amendments do not require the consent of anybody outside Parliament.

Four, certain types of consequential amendments and amendments to schedules may be made by a simple majority (more than half) in Parliament.

To amend an article within the Constitution, the determination of whether it is a technical amendment or fundamental amendment is of utmost importance. A technical amendment is made to further enforce and/or empower a law that has already been enacted whereas a fundamental amendment either changes the interpretation of a law or to repeal it completely.

Repealing the Internal Security Act cannot be categorized as a fundamental amendment to the Constitution as Article 149 and Article 150 remains intact. However, an amendment to the two Articles above whereby preventive detention is disallowed would entail the automatic repealing of the ISA as the existence of this ordinance will contradict the Constitution, which is the supreme law.

Also automatically repealed legislations include the Emergency (Public Order and Prevention Crime) Ordinance 1969, the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Act 1933, all four laws that legally permit Detention Without Trial or what we call Preventive Detention (Exclusion of Judicial Review).

Basically, to amend the Constitution whereby preventive detention becomes illegal, four laws are affected. Either the lawmakers vote to repeal these legislations altogether or amend it accordingly to remove the allowance of detention without trial.

Similarly, to amend the Constitution whereby no special preferences or privileges are accorded any single race (Article 153) will entail the scrapping of any Affirmative Action plans and budgets allocated for it. MARA will have to open its gates to all Malaysians; public listed companies are not required to allocate 30 percent of their shares specifically to any one race; the Malay quota system will have to be abolished and anybody can rise to become a MB or PM.

In conclusion, amendments to the Constitution are not simple affairs as compared to any amendments made to existing laws. When RPK decided to promote the Bill of Rights, shouldn’t we at least look at the restrictions enshrined within the Malaysian Constitution that are preventing such a legislation to be implemented in this country?