Table of Contents

1. Introduction....................................................................................................1
1.1 The Supremacy of Constitution...............................................................1
2. History............................................................................................................4
3. Amendments of the Federal Constitution.......................................................7
4. Four Procedures: Amendment of the Constitution.........................................9
5. Limits on Amendment Power.......................................................................12
6. Conclusion....................................................................................................16
7. References....................................................................................................18
1 QUESTION TWO

APPLYING THE BASIC STRUCTURE PRINCIPLE ELUCIDATE ON HOW

COULD A SUPREME CONSTITUTION MAINTAIN ITS SUPREMACY BY

PROVIDING FOR ITS OWN AMENDMENT PROCEDURES? See Loh Kooi Choon v

Govt of Malaysia [1977] 2 MLJ 187 and Phang Ching Hock v PP [1980] 1 MLJ 70 FC.

1. Introduction

1.1 The Supremacy of Constitution

Constitution defines as the fundamental law written or unwritten, that establishes the

character of a government by defining the basic principles to which a society must conform,

by describing the organization of the government and regulations, distribution and limitations

on the functions of different government departments and by prescribing the extend and

manner of the exercise of its sovereign powers.

Thus, Constitution which is known as the supreme law of the land has superiority

over the institutions it creates. The term supreme refer to the highest authority and could be

even known as being in an all-powerful position. Whereas the constitution refers to a

codified and uncodified body of rules governing the people as well as the government.

Therefore, it can be inferred that all laws passed must be consistent with the Constitution. 1

The rule of constitutional supremacy is clearly stated in Article 4(1) of Federal Constitution

where the Constitution is the supreme law in the Federation and any law passed after

Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its

inconsistency.

1 Article 4(1) of Federal Constituition.

1
 Constitution supremacy in which the law making freedom of the parliamentary

sovereignty abandons to the requirements of a constitution as the constitution is supreme

besides it also refers to the system of government. This is due to the Parliaments authority is

defined from the constitution.2 If all the laws passed have to be in line with the constitution

therefore it could be referred as complete and perfect. If a passed law is deemed as to be in

contrast with any provision in the constitution then it could be taken to the court and being

challenged as unconstitutional. The Federal Constitution is known as the supreme law in

Malaysia due to it is the fundamental and basis law of the land whereby it acts as the

benchmark to measure the legality of other law.

To strengthen the point by referring to the case of City Council of George Town v

Government of Penang,3 the subject argued that the laws made by the Government of Penang,

which are the City Council of George Town Order 1966 and Municipal (Amendment)

Enactment 1966 contravene to the Local Government Election Act (1960). The court held

that, the laws were null and void as referred to Article 75 of the Federal Constitution which

states that any state law that is inconsistent with Federal law shall be void to its inconsistent

and federal law shall prevail.

On the other hand Article 162(6) deals with any pre-Merdeka law which is

inconsistent with the Federal Constitution shall be continued with the necessary modification

to render it consistent with the Federal Constitution.

The courts are known to have applied Article 162(6) in the case of Assa Singh v MB
4
Johore which explain the Restricted Residence Enactment being a law relating to public
2 Article 44 of Federal Constitution.

3 [1967] 1 MLJ 169

4 [1969] 2 MLJ 30

2
security did not conflict with Article 9 of the constitution. However, as the enactment did not

have any provision similar to Article 5(3) and 5(4), the requirements of these Articles must be

read into the provisions of the Enactment under Article 162(6) of Federal constitution.

Therefore, as we can see, the written law which is the Federal Constitution is regard as the

highest law above all.

Next, despite of the Article 159 of the Federal Constitution which allows the

constitution to be amended by the parliament, there are several modes in order to maintain its

supremacy. The power to review the legislative and executive acts is given to the courts. 5 If

their act violates the constitution, the court may declare it void. Article 128 of the

Constitution also gives the power to the superior courts to determine on the validity of

Federal and State Law and invalidate them if it is found to be unconstitutional. We can see in
6
the case of PP v Dato Yap Peng where the accused was charged with criminal breach of

trust. The case was then transfer to the High Court under Section 418A of the Criminal

Procedure Code. The court held that Section 418A of CPC contravene the Article 121(1) of

the Federal Constitution as the power to transfer the case should fall under the jurisdiction of

judicial power. Thus, Section 418A of CPC had violates Article 121(1) of Constitution and

the case was dismissed.7

5 Article 66, 45 of Federal Constitution.

6 [1987] 2 MLJ 311

7 Prof Salleh Buang, 2008, The Malaysian bar Article 121 (1) of the Constitution:
Just who was behind that amendment move in 1988. Retrieved from
http://www.malaysianbar.org.my/index2.php?
option=com_content&do_pdf=1&id=16904

3
 In overall, the Federal Constitution of Malaysia is the supreme law in Malaysia. Any

law that contradict with the Federal Constitution is said to be null and void. 8 However, the

content of the supreme constitution does not maintain static as there was amendment

provided for the constitution to overcome the difficulties which may encounter in the future

as the time changed.

2. History

The history for the amendment of the supreme constitution was first derived from

India. According to the Constitution, Parliament and the state legislatures in India have the

power to make laws within their respective jurisdictions. The Constitution vests in the

judiciary, the power to adjudicate upon the constitutional validity of all laws. If there were

any law made by Parliament or the state legislatures violates any provision of the

Constitution, the Supreme Court has the power to declare such a law is invalid or ultra vires.9

Article 368 of the Indian Constitution gives the impression that Parliaments

amending powers are absolute and encompass all parts of the document. This Article dealt

with the procedure of amendment by applying the Basic Structure Principle to maintain the

supremacy of the Constitution. It can be amended by a simple majority in the Parliament

(Second Schedule, Article 100(3), 105, 11, 124, 135, 81, 137), or by special majority that is

majority of the total membership of each house and by majority of not less than two thirds of

the members of each house present and voting, or by Ratification by the State Legislatures

after special majority (Article 73, 162, Chapter IV of Part V, Chapter V of Part VI, Seventh

8 Article 4(1)

9 Venkatesh Nayak. Basic Structure Of The Indian Constitution. Retrieved from

http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_india
n_constitution.pdf

4
Schedule, representation of the State in Parliament and provisions dealing with amendment of

the Constitution).10

The amendment procedures can be classified into two scopes which are rigid and

flexible. Rigid procedures bring the meaning of difficult to amend the constitution like that of

U.S., Australia, Canada and Switzerland. On the other hand, flexible procedure means that

the procedure to amend is easy such as it can just be done by passing a normal legislation like

what has been applied in United Kingdom. Nevertheless, the procedure to be followed in

India is not strictly rigid or flexible as there is a difference in procedure when it affects the

federal character of the Union. Indian Constitution commonly applies the procedure of rigid

but practically has been proved to a flexible one.11 All the amendment can be proposed in

either of the Houses which can generally be enforced by a Special Majority. As for example,

it must be passed by both the houses, with more than 50% of the total members along with

two thirds of members present and voting.

The Supreme Court of India recognized the basic structure concept for the first time

in the historic case of Kesavananda Bharati v. State of Kerala12 in 1973. The Supreme Court

has been the interpreter of the Constitution and the arbiter of all amendments made by the

parliament. In this case, validity of the Twenty-fifth Amendment Act was challenged along

with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the

case of Golak Nath v. State of Punjab13, which denied parliament the power to amend
10 Arun Soni. Legal service india: Amendment of Indian Constitution, Article368.
Retrieved from http://www.legalserviceindia.com/article/l70-Article368.html.

11 Arun Soni. Legal service india: Amendment of Indian Constitution, Article368.

Retrieved from http://www.legalserviceindia.com/article/l70-Article368.html.

12 [1973] SCR Supp.1.

13 [1967] 2 SCR 762

5
fundamental rights of the citizens. The court held that the provisional Parliament is competent

to exercise the power of amending the Constitution under Article 368. The fact of the article

refers to the two Houses of the Parliament and the President separately and not to the

Parliament, does not lead to the inference that the body which is invested with the power to

amend is not the Parliament but a different body consisting of the two Houses.14

The words "all the powers conferred by the provisions of this Constitution on

Parliament" in Article 379 are not confined to such powers as could be exercised by the

provisional Parliament consisting of a single chamber, but are wide enough to include the

power to amend the Constitution conferred by Article 368.

This decision is not just a landmark in the evolution of constitutional law, but a

turning point in constitutional history.15 This is because, the Supreme Court declared that

Article 368 did not enable Parliament to alter the basic structure or framework of the

Constitution and parliament could not use its amending powers under Article 368 to 'damage',

'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the

constitution. In addition, the judgement also defined to the extend which the Indian

Parliament could restrict the right to property, in pursuit of land reform and the redistribution

of large landholdings to cultivators, overruling previous decisions that suggested the right to

property could not be restricted.

Besides India, Malaysia also face the controversial issue in the early days for the

probability of the Parliament to amend the Federal Constitution into a new provision which

was contradicted with the content of the original Constitution was set up. Articles 159 and

14Abdul Aziz Bari & Farid Sufian Shuaib, Constitution Of Malaysia: Text and
Commentary

15 Himanshu Tyagi.Legal Service India:Doctrine Of Basic Structure,Constitutional

Law. Retrived from http://www.legalserviceindia.com/articles/thyg.htm

6
161E prescribe four separate procedures to bring changes to specified parts of the basic

charter which are simple majority, two thirds majority assent of Conference of Rulers and

finally get the assents by governors. Three of these four procedures require special majorities.

Two of these four procedures require the consent of institutions or persons outside of

Parliament thereby giving credence to the proposition that in some areas the framers of the

Constitution erected bulwarks against parliamentary majorities and safe-guarded some core,

constitutional values against the power of Parliament.16

In conclusion, the history of the amendment of the supreme constitution was

originally derived from India. There are some basic structure principle in India and

Malaysia that should be applied for the constitution to maintain its supremacy. The supreme

constitution also must provide its own amendment procedures. Parliament's authority to

amend the Constitution, particularly the chapter on the fundamental rights of citizens, was

challenged as early as in 1951 in India while 1993.

3. Amendments of the Federal Constitution.

Article 159 of the Federal Constitution deals with constitutional amendments. In general, the

provision states that the Parliament can amend the Federal Constitution by passing a law.
17
Suffian FJ in the case of Teh Cheng Poh v Public Prosecutor explains that there are many

provisions showing that they realized the Constitution should be a living document, intended

to be workable between the partners that constitute the Malaysia policy, a living document

that is reviewable from time to time in the light of experience, and if need be, amended.

16 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia, pg. 552

17 [1979] 1 MLJ 50

7
The law which is made in pursuant with to the power given in Article 159 will definitely be

inconsistent with the existing provision in the constitution and be a law which is passed after

Merdeka. However, Article 4 (1) declares that any law that is passed after the Merdeka Day

which is inconsistent with the constitution, shall to the extent of inconsistency, be void.

In the case of Phang Chin Hock v Public Prosecutor 18 The appellant had been

convicted of the offence of unlawful possession of ammunition and sentenced to death. He

was tried in accordance with the Essential (Security Cases) Regulations, 1975, which were
19
held to be invalid in Teh Cheng Poh v Public Prosecutor but were subsequently validated

by the Emergency (Essential Powers) Act 1979. Then, the appellant made an appeal and

argued that if any Act of Parliament which amends the Constitution, which allowed by Article

159 of the Constitution, inconsistent with the constitution shall render as void. Meanwhile,

the court should read into the Constitution implied limitations on the power of Parliament to

destroy the basic structure of the Constitution if the amendments made by Parliament may be

inconsistent with the existing provisions of the Constitution. Therefore, the court held that

Parliament have power to make constitutional amendments although it was inconsistent with

the Constitution. In interpreting Article 4(1) and Article 159, the rule of harmonious

construction requires the court to give effect to both provisions that is Parliament may amend

the Constitution in any way they think fit, as they comply with all the conditions precedent

and subsequent regarding manner and form prescribed by the Constitution itself.

The issue arise in this particular case was the power of the parliament in amending the

constitution overlap the supremacy of the constitution. This clearly shown in this case when

the provision is still considered as valid even though the provision must be void as the

18 [1980] 1 MLJ 70 FC

19 [1979] 1 MLJ 50

8
inconsistency exist along the article 4(1) which stated that the Constitution is the supreme law

of the Federation and any law passed after Merdeka Day which is inconsistent with this

Constitution shall, to the extent of the inconsistency, be void.

However, Suffian LP provide opinion which mentioned, if the amendments made to

the constitution are valid if it is consistent with the existing provisions, then nothing could be

change to the Constitution. So, Article 159 is superfluous or unnecessary.20 In contrast, the

other provisions come to realise that the constitution should be a living document intended to

be workable between the partners that constitute the Malaysian polity which is reviewable

from time to time in the light of experience and, if need be, amended.

The rule of harmonious construction requires the court to give effect to both

provisions which are Article 159 and Article 4(1). This shows that Article 159 are considered

valid even it is inconsistent with the constitution. A distinction should be drawn between on

the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in

the ordinary way.

4. Four Procedures: Amendment of the Constitution.

According to Article 159 and 161E of the Federal Constitution, four separate

procedures are prescribed for bringing changes to specific parts of the basic charter. Three of

these four procedures require special majorities. Two out of these four procedures require the

consent of institutions or persons outside the Parliament thereby giving credence to the

proposition that in some areas the framers of the Constitution erected bulwarks against

20 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia, pg. 559

9
parliamentary majorities and safe-guarded some core, constitutional values against the power

of Parliament.21

Firstly, under Article 159 (4) paragraph (a) to (c) some minor amendments to the

Constitution can be passed by a simple majority of the members present and voting in the

Dewan Rakyat and Dewan Negara and assented to by the Yang di-Pertuan Agong. The

procedure of these amendments is similar to the procedure for enacting ordinary legislation.

If the Kings withholds their assent, then under amendments made to Article 66 in 1983, 1984

and 1994, the two Houses can bypass the King after thirty days.

Next, Article 159(3) provides the procedure applicable to most constitutional

amendments which is through two-thirds majority. Most of the provisions of the Constitution

can be modified by an amending Act which has been passed by a special two-thirds majority

of the total membership of each House on the second and third readings and assented by the

King.22 If the King refuses assent, it is arguable that he can be bypassed after thirty days

under the special procedure of Article 66 (4A).

Moreover, under Article 159(5) which explains on the Assent of Conference of Rulers, the

Majlis Raja-Raja is an essential component of the amending process in respect of those

amendments specified in Article 159 (5). The Majlis has been conferred the momentous

power to block amendments to ten key provisions of the basic charter.23 These provisions are

restriction on free speech prohibiting the questioning of sensitive issues in Article 10 (4);

21 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia, pg. 552.

22 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia,pg. 553

23 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia,pg.553

10
citizenship rights in Part III; privileges, position, honours or dignities of the Rulers in Article

38; applicability of the law of sedition to legislative and parliamentary proceedings in Article

63 and 72; precedence of Rulers in Article 70; Rulers rights of succession in Article 71;

special position of the Malay language in Article 152; privileges of the Malays and the

natives of Sabah and Sarawak in Article 153; and the special procedure for amending the

Constitution under Article 159 (5). Any amending Bill that affects the above matters must be

supported by a special two-thirds majority in both Houses and receive the consent of the

Conference of Rulers. However, the Constitution does not enlighten us whether consent of

the Conference must be sought before the Bill is presented to Parliament; before it is

submitted to the Yang Di-Pertuan Agong for his assent; or after the King has given his

assent.24 It is submitted that in order to effectuate the check and balance mechanism in Article

159 (5), the consent of the Conference of Rulers must be obtained before the Bill is submitted

to the King for his assent under Article 66.

Lastly, the Assent of Governors under Article 161E provides that any modification to the

special rights of Sabah and Sarawak requires a two-thirds majority in both Houses of the

Federal Parliament, the assent of the Yang Di-Pertuan Agong and the consent of the

Governors of Sabah and Sarawak. In giving or withholding consent, the Governors are bound

by the advice of their Chief Ministers.

Based these procedures, another issue caome into the surface which on the later event,

in the case of Phang Chin Hock v Public Prosecutor (No 2) 25 where the appellant which is

Phang Chin Hock applied by motion for leave to appeal to the Yang di-Pertuan Agong against

the judgment of the Federal Court. It was argued that section 13 of the Courts of Judicature

24 Ibid,pg.560

25 [1980] 1 MLJ 213

11
(Amendment) Act, 1976, which abolished appeals in criminal cases to the Yang di-Pertuan

Agong was invalid because the Conference of Rulers had not given its consent under article

38(4) of the Federal Constitution. In relation to the consent of the Conference of Rulers to

amends under article 159(5), there were several issues have shored up from time to time. In

this case, the court decides that the position of federal monarch is distinct from the position of

the State Sultans. As such, a constitutional amendment to abolish appeals in constitutional

and criminal cases to the Yang di-Pertuan Agong does not have to be submitted to the

Conference of Rulers.

On the other hand, the time which an amendment Bill under Article 159(5) to be

submitted to the Conference of Ruler for its assent was still be in unsolved question and

become an issue.26 So, as the nations legislative authority Parliament should have the right to

scrutinise an amendment proposal, debate and discuss it and, if need be, to amend it before

forwarding it to the Conference of Rulers for its assent. 27 The conference must examine the

finished legislative product, not the draft prepared by the Government that is not yet

approved by the two Houses.28

On a contrary, another issue arise which questioned the role of Yang di-Pertuan Agong

if the Bill is presented to the Conference and is vetoed by them. Nevertheless, in respect of

Article 66(4A) which mention the discretionary power of Yang di-Pertuan Agong to give his

assent to pass the law, has no application or relevance to constitutional amendments under

26 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia,pg.559-560

27 Ibid, pg.558-560

28 Ibid, pg.558-560

12
Article 159(5) and Article 161E. Article 38(4) applies only if an amendment affects the

privileges, position, honours or dignities of the Rulers directly.

5. Limits on Amendment Power

The Federal Constitution is not just an ordinary statute as it is the supreme law of land

in Malaysia. The word amend is logically means correcting or improving something has

already been created since old days. Furthermore, an amendment enables the correction of

flaws that are revealed by time and practice, it does not mean to reconstruct, replace or

abandoning the fundamental principles of the Constitution. Its provisions are established in

order to maintain the supremacy of the Constitution as the highest law. This is also to put

restrictions into the Articles that give too much unrestrained power for the government. If the

power to repeal or to amend any of the constitutional principles could be done easily by the

authority, there will be no supremacy of the Constitution which the implicit concept of having

a highest law is to have superiority over the institutions it creates.

Constitution is a supreme power within the legal system and it can reach every rule or

principle of legal system.29 How can it limit itself when the power is indeed supreme and if

so, how can it be supreme anymore? There are obstacles placed for those who would interfere

with the supremacy of the Federal Constitution. Thus, an internal mechanism must be

provided to the special law for growth and change of the current necessities. The mechanism

to amendment of the supreme law should not be too rigid to be accomplished or too easy as to

weaken the safeguards of the basic law as proposed by The Reid Commission. Limits of

amendment power can be divided into two types which are procedural limits and substantive

limits.

29 Article 4(1) of federal Constitution

13
According to the procedural limits, it has special procedural forms need to be exercised in

peaceful and legal circumstances according to rules established in the Constitution. 30 This is

stated in Article 38, Article 159 and Article 161 of Federal Constitution which shows how a

procedural limitation can be done. The explanation on the four procedures earlier is used for

the changing in certain parts of basic charters.31 Different procedures will be applied by the

government depends on which part of Constitution to be amended.

In the Federal Constitution of Article 159 is stating about the delegation of State

functions to another State. Then, in Article 159(1) prescribes on the laws that that subjected

to provision of Article 161(E), when effects the position of Sabah and Sarawak in the

federation, it can only be amended with the consent of the Governors of the States which will

be acting on advice of their Chief Ministers. While in Article 159(3) lays down that to amend

any provision, the votes on the Second and Third Readings must not be less than two-thirds

of majority of total number in each House of Parliament. Next, in the Article 159(5) provides

that any amendment of any Articles which touch on the issues such as right, position, status,

sovereignty, privileges on parliament or national language should not be passed without the

consent given by the Conference of Rulers with the specified amount of majority votes.

Next, the substantive limits aims to protect the basic fundamentals of the constitution

which means to preserve the constitutional in its totality.32 The issue arise was whether there

are any implied limits on the Parliaments power to destroy the basic structure of the

30Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia,pg.562

31 Ibid, pg.552-560

32 Ibid,pg 563.

14
Constitution in Malaysia? In a case of Mark Koding v PP33, an amendment of Article 63 of

Federal Constitution was challenged as a violation of basic structure. In that particular

Article, it provides Privileges on Parliament which are meant to free the members from any

harassment or intimidation of legal actions against their duties as members of Parliament.

This is because the freedom of speech given to the Parliament will eventually

subjected to the law of sedition according to Article 63(4) of Federal Constitution. The

Sedition Act 1948 was to deem necessary of expedient in the interest of the security of the

Federation. The challenge failed and court held that amendments did not concern with the

basic structure. Freedom of speech does not necessarily means that the Parliament is free

from disciplinary action. The privileges are not absolute. The court found that the amendment

had validly limited the privileges of members. This can also be explained in the case of Loh

Kooi Choon v. Government of Malaysia34, where an amendment of Article 5(4) of Federal

Constitution was unsuccessfully challenged as an affront to the basic structure of the

Constitution. In this case, Loh Kooi Choon who was a Malaysian citizen was detained by the

police under Restricted Residence Enactment 1933 (RRE) and was not brought before the

magistrate within 24 hours as he was supposed according to Article 5(4) of the Constitution

and therefore his detention was illegal. Loh Kooi Choon sued the government for damages

under unlawful imprisonment. His charge against the Government was expected to be

successful. However, Article 5(4) was amended by the Parliament before the Court could hear

appeal. The Federal Court then turned down the argument presented. Therefore, this

amendment shows that the fundamental right regarding the liberty of the person does not

apply to Loh Kooi Choons arrest under the Restricted Residence Laws.

33[1982] 2 MLJ 120

34 [1977] 2 MLJ 187

15
 Actually, this type of fundamental rights cannot easily be taken away from a person

unless the law requires to do so. If unlawfully detained, the judiciary has the power to release

a person who has been detained, upon a complaint to the High Court. The meaning brought

by the word life is not only to be alive but to get access to quality life.35

This case proves the Supremacy of the Constitution because the Federal Constitution

prevails no matter what the circumstances are. This shows that we ought to respect the law.

However, in this case the Federal Court rejected the argument and held that the Constitution

can be consistent with itself. If there happens a situation where the Parliament retrospectively

have an effect on the pending proceedings or vested rights, then it will be the responsibility of

the appellate court to apply the prevailing law on the date of the appeal. This is before it is

subject to the constitutional limitation of Article 7 of the Constitution. If it deems fit to

legislate retrospectively, the parliament would within its bounds of its power.

Supremacy of the constitution has been viewed by court as lesser in degree of

compliance compared to parliamentary supremacy. Malaysian courts are bound to the Federal

Court decision in Loh Kooi Choon v Government of Malaysia 36which gave an upper hand to

the Parliament to enact laws even when it seems to be inconsistent with the Constitution. The

Federal Court says:

The question whether the impugned Act is harsh and unjust is a question of policy

to be debated and decided by Parliament, and therefore not meet for judicial

determination. To sustain it would cut very deeply into the very being of Parliament.

35 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia

36 [1977] 2 MLJ 187

16
 Our courts ought not to enter this political thicket, even in such a worthwhile cause

as the fundamental rights guaranteed by the Constitution

However, another case which was mentioned earlier, Phang Chin Hock v PP37, the

amendments to the Constitution in 1964 and 1978 were challenged because they increased

the number of appointed Senators very drastically in order to reduce the indirectly elected

State Senators to a minority.38

These arguments against the substantive and procedural limits invent absolute limits

on the power of amendment by Parliament even though such limits are not clearly provided. 39

It is regarded as just a piece of judicial legislation. A judicial review may be applied to the

constitutional amendments as the amendment power is limited and defined.40

The rationale of having judicial review of amendments is that the principle of

constitutional supremacy that requires courts to ensure that the legislature exercises all its

power including amending powers in accordance with the constitution. 41 This judicial review

will accomplish the supremacy of the constitution. 42 This shows that the constitution is

supreme by providing amendment power to a constitutional organ by the Constitution. If

these provisions of amendment limits are not provided, the limited authorities can eradicate

37 [1980] 1 MLJ 70

38 Shad Saleem Faruqi, (2008), Document of Destiny: The Constitution of the

Federation of Malaysia,pg.563

39 Ibid, pg.563

40 Ibid, pg.563

41 Article 159(1)

42 Ibid,pg.65

17
their own limits at any time as well as there is no purpose of the legislation. It safeguards the

basic values of the Constitution against power of transient political majorities.

6. Conclusion

In conclusion, controversial debates regarding the amendment which occur in Malaysia

will still be from time to time. Basically, in Malaysia which exercised the Constitutional

supremacy, the highest law of the land shall be the Federal Constitution itself which is in

accordance to Article 4(1). However, how can there such amendment which inconsistent is

valid when there is the supreme law. This can be clearly shown in both case of Phang Chin

Hock v PP 43 and Loh Kooi Choon v. Government of Malaysia44 . It seems clear that according

to Malaysian judiciary, a Constitution can be amended in any way the government sees fit,

provided that all the procedures for making constitutional amendments are followed correctly.

Actually, this type of decision does not conform to our natural justice. As such, the

purpose of a Constitution is to determine the very principles upon which country is founded

and governed, there should be a certain spirit of the Constitution that cannot be contravened

or amended. The spirit must be stated clearly in opening remarks. For instance, The Malayan

Proclamation of Indepence provides a ready-made statement of founding principles, which

the country has ostensibly devoted itself to that stated that Federal Constitution aforesaid

provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and

the fundamental rights and liberties of the people and to provide for the peaceful and orderly

advancement of the Persekutuan Tanah Melayu as a constitutional monarchy based on

Parliamentary democracy. Therefore, the government would not be able to cut down the

43 [1980] 1 MLJ 70

44 [1977] 2 MLJ 187

18
rights of Malaysians citizens at their will. Last but not least, it is crucial and indeed

important that there be some founding principles and a fundamental spirit for the country to

avoid losing sight of. Without being tethered to any such principles, the country and its

people are lost.

19
7. References

1. Federal Constitution of Malaysia

2. Faruqi, Shad Saleem. Document of Destiny: The Constitution of the Federation of
Malaysia. Petaling Jaya, Selangor Darul Ehsan, Malaysia: Star Publications
(Malaysia), 2008.
3. Abdul Aziz Bari,& Farid Sufiar Shuaib. Constitution Of Malaysia: Text And
Commentary,Petaling Jaya,Selangor, Malaysia: Pearson Prentice Hall. (2004)
4. Salleh Buang. The Malaysian bar Article 121 (1) of the Constitution: Just who
was behind that amendment move in 1988 retrieved from
http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1
&id=16904 25th November 2016. (2008)
5. Venkatesh Nayak. Basic Structure of The Indian Constitution. Retrieved from
http://www.humanrightsinitiative.org/publications/const/the_basic_structure_o
f_the_indian_constitution.pdf 25th November 2016.(n.d)
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