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It must further be noted that, according to Shad Saleem Faruqi, as at 2005, the Constitution has been amended 42 times over the 48 years since independence. However, as several amendments were made each time, he estimates the true number of individual amendments at around 650.
NO HOLDS BARRED
Raja Petra Kamarudin
For some time now, Malaysians, Malays included, have been talking about abolishing the Monarchy so that Malaysia can be turned into a Republic. Others question the purpose of maintaining a Monarchy that costs money but is of no use to the majority of Malaysians -- other than maybe members of the Royal Family. Others want to retain the Monarchy but they want the Rulers to get off their backs and earn their salary by doing some work. However, when the Rulers actually do some work, these same people will complain that the Rulers should not ‘interfere’ in the running of the country but should instead sit quietly and don’t get involved in matters of state.
Lately, since the 8 March 2008 general election, Malaysians have been talking about the two-thirds majority in Parliament (which Barisan Nasional has lost), though many do not really comprehend the significance of winning or losing this two-thirds majority. And they also fail to understand how this two-thirds majority works alongside the Monarchy.
Why is the Monarchy crucial? Can Malaysia function without a Monarchy? Is a two-thirds majority in Parliament crucial? Can the government function without its two-thirds majority in Parliament? Hey, why ask me? I am not a lawyer. Even lawyers are sometimes lost unless he or she is a constitutional lawyer.
Okay, let’s get serious. Let’s, today, try to understand these issues so that when you post comments in Malaysia Today’s blogs you will not put your foot in your mouth and make a fool of yourself. First of all, Malaysia has a law called the Sedition Act and to make a statement asking for the abolishment of the Monarchy is seditious and a crime under the Sedition Act.
Of course, the Sedition Act can be amended or repealed so that it is no longer a crime to propose the abolishment of the Monarchy. But only a government with a two-thirds majority can do this unless the ‘other side’ will support the bill tabled by a government that does not have a two-thirds majority in Parliament. So, until then, be very careful with what you say because asking for Malaysia to be turned into a Republic can get you sent to jail.
Let us first review the history of the Federal Constitution of Malaysia. From 18 January to 6 February 1956, a conference was held in London to look into the task of drawing up a Malayan Constitution. Britain itself, the host country, did not have a written constitution so it is quite ironical that our colonial master would want to recommend one for us.
The Rulers supported the move to come out with a written constitution and they sent four of their representatives to participate in the conference. The Chief Minister of the Federation, Tunku Abdul Rahman, together with four Ministers also participated in the conference, as did the British High Commissioner to Malaya plus his advisers.
The conference proposed that an independent commission be set up and be given the task of coming out with a constitution for a fully self-governing and independent Federation of Malaya. Her Majesty Queen Elizabeth II as well as the Malay Rulers agreed to this move and with that the Reid Commission was set up and headed by Lord William Reid. The Queen, with the agreement of the Malay Rulers, also appointed constitutional experts from fellow Commonwealth countries to sit in the Reid Commission.
The Federal Constitution of Malaya came into force on 27 August 1957, four days before independence or Merdeka. In drawing up this new constitutional, various factors were taken into consideration.
1) The Federation of Malaya Independence Act 1957, together with the Orders in Council made under it.
2) The Federation of Malaya Agreement 1957 between the government of the United Kingdom and the government of the Federation of Malaya.
3) The Federal Constitution Ordinance 1957 passed by the Malayan Parliament.
4) The State Enactments of each of the Malay States, approving and giving force of law to the Federal Constitution of Malaya.
Invariably, the Federal Constitution of Malaya, with significant amendments included, was used as the basis for the Federal Constitution of Malaysia when Malaya, Sabah, Sarawak, and Singapore merged to form Malaysia in 1963.
Now, it must be noted that Sabah, Sarawak and Singapore did not join Malaysia. Malaysia did not exist yet, then. What existed was Malaya -- and Sabah, Sarawak and Singapore merged with Malaya to form Malaysia. This means, Sabah, Sarawak and Singapore are of the same status as Malaya, not of the same status as one of the states of Malaya such as Selangor, Perak, Kedah, Perlis, Penang, etc. Today, Sabah and Sarawak are treated as just another of the Malaysian states and that is the bone of contention of these two East Malaysian states.
This was also one of the sore points in the Singapore-Malaysia relationship that resulted in Singapore leaving the Federation. Tunku Abdul Rahman did not agree that Lee Kuan Yew call himself Prime Minister of Singapore as the Tunku did not see how Malaysia could have two Prime Ministers. Lee Kuan Yew, on the other hand, did not agree to being ‘downgraded’ to a Chief Minister like Penang, Melaka, Sabah and Sarawak. Actually, Lee Kuan Yew was right and the Tunku wrong as far as I am concerned, though 99% of the Malays would disagree with me on this point.
The Federal Constitution of Malaysia can, of course, be amended and has, in fact, been amended many times. The Constitution itself has provisions under Articles 159 and 161E on how it may be amended. And the amendments can be made by federal law and in the following ways:
1. Some Articles may be amended only by a two-thirds majority in each House of Parliament but only if the Conference of Rulers consents to it. This means, even if you have a two-thirds majority in Parliament, you can’t amend these Articles in the Constitution unless the Rulers agree to the amendments. This would be with regards to the following:
* Amendments pertaining to the powers of sultans and their respective states
* The status of Islam in the Federation
* The special position of the Malays and the natives of Sabah and Sarawak
* The status of the Malay language as the official language
2. Some Articles in the Constitution related to Sabah and Sarawak may be amended by a two-thirds majority in each House of Parliament but only if the Governors of the two East Malaysian states concurs. This would be with regards to the following:
* Citizenship of persons born before Malaysia Day
* The constitution and jurisdiction of the High Court of Borneo
* The matters with respect to which the legislature of the state may or may not make laws, the executive authority of the state in those matters and financial arrangement between the Federal government and the state.
* Special treatment of natives of the state
3. Then there are some Articles in the Constitution that may be amended by a two-thirds majority in each House of Parliament. These amendments do not require the consent of anybody outside Parliament. (The extension of the tenure of the Chairman of the Elections Commission is one case in point).
4. Some Articles, which are not that important, may be amended by Parliament with just a simple majority. You, therefore, do not need a two-thirds majority in Parliament in some cases. (Not sure what these are until I get elected into Parliament and find out what they are).
It must further be noted that, according to Shad Saleem Faruqi, as at 2005, the Constitution has been amended 42 times over the 48 years since independence. However, as several amendments were made each time, he estimates the true number of individual amendments at around 650. Shad argued that there is no doubt that the spirit of the original document has been diluted. This sentiment has been echoed by other legal scholars who argue that 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. It has been estimated that between 1957 and 2003, almost thirty Articles have been added and repealed as a consequence of the frequent amendments.
Okay, that is the history of the Federal Constitution of Malaysia and the role the two-thirds majority and the Monarchy play in upholding this Constitution. If further discussion is required we can always come up with parts 2 and 3 of this piece so that, hopefully, in the end, all Malaysians can become experts on the issue and we no longer require lawyers to tell us how the system works.
But before I sign off, can you now see the logic in not allowing any one group, whether Barisan Nasional or Pakatan Rakyat, in having a two-thirds majority in Parliament? Giving them two-thirds is like having no opposition at all. Better they rule without the two-thirds and the ‘other side’ supports any bills that deserve supporting while they can oppose anything that should be opposed. If this were the case then the Chairman of the Elections Commission would have never seen his tenure extended and the recent general election would not have been rife with fraud.
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