The Malaysian constitutional system
5.2.1 The emergence of the Malaysian polity
Situated between the Indian Ocean and the South China Sea, the Malay Peninsula sits at the center of Southeast Asia, a location that made its port cities the nucleus of trade routes between the East and the West.
Changing colonial hands from the Portuguese to the Dutch and then to the British, the Federation of Malaya eventually achieved independence in 1957, following negotiations between local representatives from Malaya and the British government.An independent commission headed by Lord Reid was appointed to create the new federation’s constitution; it was tasked with making recommendations “for a
Constitutional amendments in Malaysia 89 federal form of constitution for the whole country as a single self-governing unit within the Commonwealth based on parliamentary democracy with a bicameral legislature.”[291] The Reid Commission, constituted by five Commonwealth legal experts, gathered evidence from local groups and individuals before publishing a draft constitution, which was later modified after input by Malaya's Alliance coalition.
On August 31, 1957, the Federation of Malaya became a fully independent state, with the Independence Constitution coming into force. In 1963, the Federation of Malaysia was created when the polity expanded to include Singapore and the Borneo states of Sabah and Sarawak.
The Federal Constitution of Malaysia established a federal system of government, with a legislative, executive, and judicial branch, and a constitutional monarch.[292] Malaysia's constitutional framework is modelled after Westminster, with a bicameral Parliament and a Prime Minister and Cabinet as part of the executive. Significantly, Article 4(1) expressly declares that the Constitution is the supreme law of the land.[293] Courts are acknowledged to have the power to invalidate unconstitutional legislation and executive actions, and the Constitution also contains a chapter guaranteeing fundamental liberties.[294]
Malaysia's Constitution has often been said to embody a “social contract,” reflecting the inter-communal compromise among the various racial and religious groups reached at the founding.[295] The elements of the constitutional framework include the establishment of a strong central government with the states and settlements enjoying a measure of autonomy, the safeguarding of the position and prestige of the Malay rulers, a constitutional head of state chosen from among the Malay rulers, a common nationality, and the safeguarding of the special position of the Malays and the legitimate interest of other communities.
5.2.2 The constitutional amendment process in Malaysia
Amendment rules are contained in Article 159 of Malaysia's Constitution.
In general, amendments require an Act of Parliament that has been passed by a two- thirds majority of the total number of members of each House of Parliament.[296]There are three categories of exceptions to this general requirement. First, the consent of the Conference of Rulers is additionally required for amending provisions dealing with citizenship, the Conference of Rulers, the Malay
national language, the special position of the Malays, and the natives of Sabah and Sarawak.[297] A second category involves amendments affecting the constitutional position of Sabah and Sarawak, which requires the heads of these states to concur.[298] Third, for certain amendments - like those concerning supplementary citizenship provisions and the admission of a new state into the federation - a simple majority vote is all that is required.[299]
Formal amendment rules are one thing, amending the constitution in practice is another. The two-thirds legislative majority to amend most constitutional provisions has rarely posed a constraint for much of Malaysia’s history. Since its enactment in 1957, the Malaysian Constitution has been amended extensively; estimates put the number at 51 amendment acts, or about 700 individual textual amendments.[300]
From the country’s independence in 1957 to 2018, the Barisan Nasional ruling coalition typically controlled more than a two-thirds majority in parliamentary. As a result, constitutional amendments “had been apparently regarded by the government as a mechanism which could be exploited, as required, to enable the government and the ruling party to maintain and increase its grip on power.”[301]
Things look somewhat different now. In the 2008 general elections, the Barisan Nasional lost its legislative supermajority for the first time in decades, and in 2018 was ousted from government. None of the governing coalitions that have come into power since 2018 have managed to control close to two-thirds of the parliamentary seats; indeed, the incumbent government appears to barely command a threadbare majority in Parliament. Still, it is relevant for our discussion on the basic structure that concerns about democratic legitimacy in Malaysia have historically not been focused on the difficulty of formal constitutional change, but on the ability of powerful political branches to amend the constitution at will.
5.3