JUDICIAL REVIEW
SEPARATION OF POWERS
AMENDMENT OF THE CONSTITUTION
To make sure that executive & legislative act according to law
To determine the validity of their function
To interpret the federal & state constitution
Any action may be declare invalid if it is ultra vires the constitution
Basic concept of democracy
Powers of government were of these kinds:
Legislative power – making law
Executive power – governs & policed the law
Judicial power – enforced the law
Involved a system of check and balance – to ensure the balance of powers between the three arms of government.
Each body would check the others & ensure they have not exceeded or abused their power. If all three powers govern by the same person – dictatorship & arbitrary rule
The Federation Constitution, after the formation of Malaysia, provides for its amendment in Articles 159 and 161E.
These set out four different modes of amendment, according to the provision which is sought to be amended
Amendments requiring a two-thirds majority
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 members of each Dewan on its second and third readings.
This may be considered as the common method of amendment
Amendments requiring a simple majority
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, for example:
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;
Creation of inferior courts, and the jurisdiction and powers of the High Courts and inferior courts.
Amendments requiring the consent of the Majlis Raja – Raja
The amendments of a number of provisions require, in addition to a two-thirds majority, the consent of the Majlis Raja – Raja.
These provisions, considered the most important in the constitution, concern what are called ‘sensitive issues’: the Majlis Raja – Raja itself, the precedence of Rulers and Governors, the federal guarantee concerning the institution and succession of Rulers, the special position and privileges of the Malays and natives of Sabah and Sarawak, legitimate interests of the other communities, and citizenship.
The spectrum of provisions was expanded in 1971 to include provisions concerning restrictions on freedom of speech in the interest of internal security and public order, and any law passed there under prohibiting the questioning (but not the implementation) of any of the so-called ‘sensitive issues’.
A law altering the boundaries of a state also requires the consent of the Majlis Raja-Raja, in addition to the consent of the state itself.
Amendments requiring the consent of the Yang di-Pertua Negeri (Governor) of Sabah and Sarawak
Constitutional amendments affecting special ‘safeguards’ arranged for Sabah and Sarawak upon their accession and enumerated in Article 161E require, in addition to a two-thirds majority, the consent of the Yang di-Pertua Negeri of either or both of these states, as the case may be.
These ‘safeguards’ concern citizenship; the constitution and jurisdiction of the High Court of Sabah And Sarawak, and the appointment, removal, and suspension of its judges; state legislative and executive powers and federal – state financial arrangements; religion; the national language and the special treatment of natives of the state; and entry and residence in the state.