A Constitution of a State has long been accepted and referred to as a ‘Bible’ for the running of the State. It regulates the powers and functions of the institutions of government, safeguards the interest of the nation and its citizens, and structures the relationship between the component State itself. Due to its nature, a Constitution must at all times be relevant and adaptable to changing circumstances and needs of a nation and its people.

The Federal Constitution of Malaysia allows for amendment of its provisions to adapt to the present times, but, such powers of amendment are subject to the conditions, requirements and procedures provided in Article 159 (1) and Article 161E. The then Federal Court Judge, DYMM Almarhum Sultan Azlan Shah Raja Azlan Shah in Loh Kooi Choon v Government of Malaysia, at page 189, had simplified as follows:

“Our Constitution prescribes four different methods for amendment of the different provisions of the Constitution:

• Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159. and are specifically excluded from the purview of Article 159;
• The amending clause (5) of Article 159 which requires a two-thirds majority in both Houses of Parliament and the consent of the Conference of Rulers;
• The amending clause (2) of Article 161E which is of special interest to East Malaysia and which requires a two-thirds majority in both Houses of Parliament and the consent of the Governor of the East Malaysian State in question;
• The amending clause (3) of Article 159 which requires a majority of two-thirds in both Houses of Parliament.”[1]

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The Role of States in the Amendment Process

Despite Malaysia adopts a federalism structure of government, whereby neither state governments nor Federal Government can act alone in constitutional change; in actual practice, the Federal Government can act alone and the role of federating states is very little and limited.

Malaysia exercises indirect participation of states:

(1)       Firstly, by the Rulers and Governors acting on the advice of the respective Executive Councils and in the case of the Yang di-Pertuan Agong, the Cabinet.[2] When the Conference of Rulers holds the conference deliberating on matters of national policy, the rulers are usually accompanied by the Yang di-Pertuan Agong, the Prime Minister, all the Chief Ministers.

(2)       Secondly, by senators in the Senate. Each State Government elects two senators representing the State. Indirectly these senators are presumed to be the Senate’s representatives in the federal legislative-making process.[3] The Senate has a full-fledged veto in the constitutional amending process because in addition to the requirement of a two-third majority in the House of Representatives, a Bill must also obtain the approval of a two-third majority in the Senate.[4]

The power of the states is lacking in terms of the amending process. Even in the case of new admission or a secession of a state, consent from federating states is not necessary; the Federal Government needs only to legislate an Act of Parliament for the purpose.[5]

There is a matter in which the states are given direct participation, namely, to alter boundaries of the state. In this matter, the consent of the state concerned must be obtained by a law passed by the legislature of that state in addition to the consent of the Conference of Rulers before Parliament can legislate to alter the state boundaries.[6]

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Amendment by the Concurrence of Sabah and Sarawak

It is clear that by virtue of Article 161E (2) of the Federal Constitution:

“No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

1. the right of persons born before Malaysia Day to citizenship by reason of a connection with the State, and (except to the extent that different provision is made by the Constitution as in force on Malaysia Day) the equal treatment, as regards their own citizenship and that of others, of persons born or resident in the State and of persons born or resident in the States of Malaya;
2. the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court;
3. the matters with respect to which the Legislature of the State may (or Parliament may not) make laws, and the executive authority of the State in those matters, and (so far as related thereto) the financial arrangements between the Federation and the State;
4. religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;
5. the allocation to the State, in any Parliament summoned to meet before the end of August 1970, of a quota of members of the House of Representatives not less, in proportion to the total allocated to the other States which are members of the Federation on Malaysia Day, than the quota allocated to the State on that Day.”

The Insertion of Article 121 (1A)

Article 121 of the Federal Constitution was amended by the insertion of Clause (1A) which came into effect on 10 June 1988,[7] with the primary intention to resolve the conflict of jurisdiction between the civil and Syariah courts.

The recognition of the Syariah courts was largely due to Article 121 (1A) which excludes the jurisdiction of civil courts on any matter within the jurisdiction of Syariah courts.[8] The Syariah courts can only deal with matters which the various state Legislatures have enacted as conferring jurisdiction on them, pursuant to Article 74(2) and Schedule 9 of the Federal Constitution. Such jurisdiction is conferred, in respect of states, by virtue of item 1 of the State List to Schedule 9, while jurisdiction in respect of the Federal Territories is dealt with under item 6(e) of the Federal List to Schedule 9.[9]

As provided above, by virtue of Article 161 E (2) (b) of the Federal Constitution, no amendment can be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak, should it affect the constitution and jurisdiction of the High Court of Sabah and Sarawak.

Article 121 (1) provides:

“There shall be two High Courts of co-ordinate jurisdiction and status, namely—

(a)   one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b)   one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”

The insertion of Article 121 (1A) has in a way limit the jurisdiction of the said courts described in Clause (1) of Article 121, including the High Court of Sabah and Sarawak.

To this, it was pertinent for the amendment to Article 121 to be made with the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak.

However, should we look closely into the matter, there is nowhere mentioned in the preamble of the Constitution (Amendment) Act 1988 (Act 704 of 1988) nor the entire Act that the amendment made received any consent or concurrence from the Yang di-Pertua Negeri of the State of Sabah or Sarawak.

The only public proof that such amendment to Article 121 received concurrence of Sabah and Sarawak was by reference to the case of Robert Linggi v The Government of Malaysia.[10] Datuk David Wong Dak Wah J (as His Lordship then was) in the supplementary judgment[11] to the issue “whether the concurrence of the Yang di-Pertua Negeri of each of the 6 States of Sabah and Sarawak is required pursuant to Article 161E(2)(b) of the Federal Constitution when Article 121(1) of the Federal Constitution was amended with effect from 10.6.1988?” stated that the defendant showed proof by submitting to the court the consent letters from the respective State Secretary addressed to the Y.A.A Tan Sri Abu Talib Osman (former Attorney General Malaysia).

The question that arises at this juncture, is whether the consent letters as provided in the case of Robert Linggi v The Government of Malaysia is sufficient to signify that consents were obtained for the insertion of Clause (1A) to Article 121?

A brief look at Section 15 of the Delegation of Powers Act 1956 provides:

“Where by any written law power is given to the Ruler in Council or Yang di-Pertua Negeri in Council of any State to make any regulation or order or give any direction, approval, permission or consent it shall be sufficient, unless it is otherwise expressed, for such regulation, direction, approval, permission or consent to be signified under the hand of the Clerk of the State Executive Council or such other person as may by notification in the Gazette be designated in that behalf either generally or specially by the Ruler in Council or Yang di-Pertua Negeri in Council of such State.”

Aside from the consent letters provided in the case of Robert Linggi v The Government of Malaysia, there has been no other proof publicly provided to show that the consent of the State of Sabah and Sarawak were obtained for the inclusion of Clause (1A) to Article 121 of the Federal Constitution.

Should the consent letters be sufficient (as it has been accepted by the Court), then the amendment is understood to have been made accordingly.