Constitution of Malaysia

… important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that “the present Federal Constitution bears only a superficial resemblance to its original model. -DR. SHAD SALEEM FARUQI

We all know that The Federal Constitution of Malaysia is the supreme law of Malaysia but do you know how many times did the constitution being amended?

As of early 2008, the number of individual amendments to the constitution is estimated to be about 670. Well, excluding a few amendments that were made to let Singapore gain independence, the amount of amendment will not go lower than 640 times.

Look at the amount of amendment that was made since our country independence, Malaysia for sure outpace nearly most of the country in the world for the amount of amendment that was made, even United States of America also lose because US amended her constitution for only 27th times.

Frankly speaking, certain amendment I do support such as the amendment which strip off the royal family’s immunity from being charge or sue for their misdeed. This is good but as for the other amendments, I can say that they amend to accommodate their own interest instead of the rakyat interest, in short, abuse of power. The most serious case is the amendment that was made in 1988 that put judiciary under Parliament’s influence.

All I can say is that most of the roots of unrest & havoc in this country started from the amendment of constitution. We should always be vigilant whenever a law was enacted or amended because any law that was enacted or amended will affect us in some ways. If it doesn’t favor the rakyat, tell those in charge through any channel you can. Don’t accept it blindly. We should dictate our country destiny because our country practice democracy where people is the master.

Below are the major & most controversial amendments that were ever made in Malaysia history.

Sensitive Matters Amendment

One of the most controversial amendments in Malaysia’s Constitution is the Constitution (Amendment) Act, 1971, which came in the wake of the May 13, 1969 racial riots.

Known as the “Sensitive Matters Amendment,” it revised Article 10 – which safeguards freedom of speech – to empower Parliament to pass laws to restrict public discussion on four “sensitive” issues: citizenship; the national language and the languages of other communities; the special position and privileges of the Malays and natives of the Borneo states, and the legitimate interests of other communities; and the rulers’ sovereignty.

Before the Act, the Conference of Rulers’ consent was required only for amendments to provisions related to the rulers, and the special rights and privileges of the Malays and the legitimate interests of other communities.

As a result of the Act, consent was also required for other provisions, such as Article 10 (freedom of speech), Article 63 (privileges of Parliament), Article 72(privileges of the state legislative assembly) and Article 152 (national language).

Article 153 originally provided for the Yang di-Pertuan Agong to be the guardian of the special position of the Malays and the legitimate interests of other communities. It also empowered him to ensure that a reasonable proportion of opportunities was reserved for the Malays in public service, education, and for permits and licences.

The 1971 amendment allowed the natives of the Borneo states to have the same status as the Malays.

It also empowered the Agong to direct any institution of higher learning to reserve a reasonable proportion of places for the Malays and natives, should the number of places be less than the number of qualified candidates.

Judiciary

Another milestone in the Constitution’s evolution was the amendment to Article 121 in 1988, which effectively put the judiciary under Parliament’s influence. The attorney-general was also empowered to determine the courts for cases to be heard.

To the legal fraternity and civil society, this eroded the judiciary’s autonomy and weakened the separation of powers between the three branches of government – the judiciary, the executive and the legislature.

The amendment came in the wake of a series of court cases where the executive accused the judiciary of encroaching on its powers. These cases included a court ruling overturning the government’s decision to revoke a foreign correspondent’s work permit, judicial reviews of ministerial decisions such as the award of the North South Highway project to UEM, and the declaration of Umno as illegal following a dispute over the party’s election in 1987.

Then Lord President, Tun Salleh Abas, and several judges, wrote a letter to the King about the efforts to undermine public confidence in the judiciary. He was charged with writing the letter without the approval of all the judges and displaying bias against the government, and was dismissed in August 1988.

Five Supreme Court judges who objected to the tribunal set up to decide Salleh’s fate were suspended. They were the late Tan Sri Wan Suleiman Pawanteh and Tan Sri Eusoffe Abdoolcader, Tan Sri Azmi Kamaruddin, Tan Sri Wan Hamzah Salleh and Datuk George Seah.

After Salleh’s dismissal, a second tribunal was convened to deal with the five judges, resulting in the dismissal of Wan Suleiman and Seah, while the others were acquitted.

Another amendment in 1988 resulted in Article 121 (1)(A), which stipulated a separation of jurisdictions between the civil and syariah courts, whereby the former would have no say over any matter under the syariah court’s purview.

“The amendment left many unanswered questions. It was done with good intentions so that only lawyers trained in syariah law would handle syariah issues,” Shad said.

“However, it does not offer a solution when one party is a non-Muslim, when there are international implications, if it is a constitutional issue and involves a remedy which the syariah court has no right to grant such as habeas corpus and mandamus (the domain of the High Court).”

In recent years, there have been cases where a non-Muslim party to a case has been told to seek recourse at the syariah court.

“The civil courts have started to abdicate or cede jurisdiction when there is the slightest whiff of an Islamic issue,” Shad said.

“The syariah court has broken the dyke, the civil court has looked the other way.”

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