AMENDMENT of the Federal Constitution is provided for in Article 159. Clause (1) declares that, “Subject to the following provisions of this Article and to Article 161E, the provisions of this Constitution may be amended by federal law”.
The article then prescribes four different methods for amendment of the different provisions of the Constitution:
SOME parts of the Constitution require a majority of two-thirds in both Houses of Parliament: Article 159 (3);
SOME parts may be amended by a simple majority in both Houses of Parliament, such as that required for the passing of any ordinary law: Article 159(4);
SOME parts may be amended by a two-thirds majority in both Houses of Parliament and the consent of the Conference of Rulers: Art 159(5); and,
SOME parts require a two-thirds majority in both Houses of Parliament and the consent of the governor of the East Malaysian state in question: Article 161E.
However, for the purpose of this paper, it is sufficient to remember that the Constitution may be amended by a two-thirds majority in both Houses of Parliament and, in certain cases, with the consent of the Conference of Rulers.
Note that first, the power to amend the Constitution is vested in the Parliament.
Secondly, nowhere does it say that certain articles form the basic structure of the Constitution and cannot be amended.
Thirdly, nowhere does it say that the court may decide on a case to case basis which articles form part of the basic structure of the Constitution or not and, therefore, may or may not be amended.
It was understood, therefore, that in accordance with the doctrine of separation of powers, it is the Parliament that has the power to amend any part of the Constitution provided it follows the right procedure as provided by the Constitution.
In 1973, the Indian Supreme Court decided the case of Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
The court held that Article 368 (on the amendment of the Indian Constitution) does not enable Parliament to alter the basic structure or framework of the Constitution. The effect of that judgment is that certain provisions of the Indian Constitution form the basic structure of the Constitution.
The court will decide which provisions of the Constitution form the basic structure of the Constitution on a case by case basis. The court will then use basic structure principle as the basis of its power to review, and to strike down, amendments to the Constitution of India enacted by the Indian Parliament which conflict with or seek to alter this basic structure of the Constitution.
As such, the amending power of Parliament is limited and does not extend to damaging any of the essential features of the Constitution, as may be determined by the court.
With that judgment, the judges gave themselves and their colleagues the power to strike down any amendment by Parliament of any provision of the Constitution, which the judges say form the basic structure of the Constitution; and to strike down any amendment by Parliament that seeks to alter this basic structure of the Constitution as determined by them.
That case was decided by a slim majority of seven to six. It is said that when the case was decided, the perception by the majority bench that elected representatives could not be trusted to act responsibly was unprecedented.
It was also said that the subsequent passage of the 39th Amendment to suppress Indira Gandhi’s prosecution and the imposition of the state of emergency by Gandhi in 1975 proved that, in fact, this apprehension was well-founded.
Those were the circumstances under which the judgment was delivered. Anyway, those circumstances were peculiar to India then.
Following that, lawyers in Malaysia, particularly former presidents of the Bar Council like G.T.S. Sidhu, Raja Abdul Aziz Addruse and Param Cumaraswamy had tried to persuade the Malaysian Federal Court to follow the said judgment and adopt the principle.
In 1977, the then Federal Court decided the case of Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187. The bench consisted of Ali Hassan (who unfortunately died before the judgment was delivered), Raja Azlan Shah and Wan Suleiman FJJ. The counsel was Raja Abdul Aziz Addruse.
In his judgment, Raja Azlan Shah FJ (as he then was) said:
“The question whether the impugned Act is ‘harsh and unjust’ is a question of policy to be debated and decided by Parliament, and therefore, not meet for judicial determination. To sustain it would cut very deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution, for as was said by Lord Macnaghten in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 118:
“Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But, a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.”
It is the province of the courts to expound the law and “the law must be taken to be as laid down by the courts, however much their decisions may be criticised by writers of such great distinction” — per Roskill LJ in Henry v Geopresco International Ltd [1975] 2 All ER 702 718.
Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.
His Lordship then considered the judgments of the Indian Supreme Court on the basic structure of the Constitution, including Kesavananda Bharati and, in no uncertain terms, rejected the attempt to make our court adopt the principle. The learned judge, inter alia, said:
“Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording ‘can never be overridden by the extraneous principles of other Constitutions’ — see Adegbenro v Akintola & Anor [1963] 3 All ER 544 551. Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from a desire to see how their progress and wellbeing is ensured by their fundamental law.
“It is, therefore, plain that the framers of our Constitution prudently realised that future context of things and experience would need a change in the Constitution, and they, accordingly, armed Parliament with ‘power of formal amendment’. They must be taken to have intended that, while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so as to allow the country’s growth. In any event, they must be taken to have intended that it can be adapted to changing conditions, and that the power of amendment is an essential means of adaptation. A Constitution has to work not only in the environment in which it was drafted but also centuries later.
“There have also been strong arguments in support of a doctrine of implied restrictions on the power of constitutional amendment. A short answer to the fallacy of this doctrine is that it concedes to the court a more potent power of constitutional amendment through judicial legislation than the organ formally and clearly chosen by the Constitution for the exercise of the amending power.”
In 1980, the Federal Court consisting of Suffian LP, Wan Suleiman and Syed Othman FJJ heard the case of Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70. The Counsel was G.T.S. Sidhu.
The Court held that:
PARLIAMENT have power to make constitutional amendments that are inconsistent with the Constitution; and,
PARLIAMENT may amend the Constitution in any way they think fit, provided that they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself.
It should be noted that, in his judgment, Suffian LP considered the Indian cases on the basic structure issue, including Kesavananda Bharati v State of Kerala [1973] SCR 1; AIR 1973 SC 1461 Supp; Shankari Prasad Singh Deo and Others v The Union of India and Others AIR 1951 SC 458; Sajjan Singh v State of Rajasthan AIR 1965 SC 845; I.C. Golak Nath & Others v State of Punjab (1967) 2 SCR 762; AIR 1967 SC 1643.
Not only did he refer to Loh Kooi Choon, but he also quoted Raja Azlan Shah’s judgment and said: “With respect, we agree with Raja Azlan Shah FJ, as he then was, when he said at pages 188-9: ‘Whatever may be said of other Constitutions...’ which I have reproduced above.”
He also gave a lengthy analysis of the differences in the making of the Indian and our Constitutions, and concluded:
“Considering the differences in the making of the Indian and our Constitutions, in our judgment, it cannot be said that our Parliament’s power to amend our Constitution is limited in the same way as the Indian Parliament’s power to amend the Indian Constitution.”
In 1989, the High Court of Singapore (Chua J) heard the case of Teo Soh Lung v Minister for Home Affairs and Ors. [1989] 2 MLJ 449. The court held:
(8) If the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations but art 5 has no such limitation.
(9) If the courts have the power to impose limitations on the legislature’s power of constitutional amendments, they would be usurping Parliament’s legislative function contrary to art 58 of the Constitution.
(10) The Kesavananda AIR 1973 SC 1461 doctrine (that there were basic features of the Constitution that Parliament could not amend) is not applicable to the local Constitution. Considering the differences in the making of the Indian and the local Constitution, it cannot be said that our Parliament’s power to amend our Constitution is limited in the same way as the Indian Parliament’s power to amend their Constitution.
Note that the Singapore High Court even followed Loh Kooi Choon and adopted Suffian LP’s reasoning in Phang Chin Hock.
Teo Soh Lung’s appeal to the (Singapore) Court of Appeal was dismissed.
In 2007, 30 years after Loh Kooi Choon was delivered, the Federal Court consisting of Ahmad Fairuz CJ, Abdul Hamid Mohamad PCA, Alauddin CJ (Malaya), Richard Malanjum CJ (Sabah and Sarawak) and Zaki Azmi FCJ heard Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1.
The issue was whether section 97(2) of the Child Act 2001 (Act 611) was constitutional.
The Court of Appeal held that it was unconstitutional as it contravened the doctrine of separation of powers embodied in the Federal Constitution by consigning to the Executive judicial power vested in the courts.
The Court, including Richard Malanjum CJ (Sabah and Sarawak), a member of the panel that decided the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor. [2010] 2 MLJ 333 two years later, held that the section was constitutional and allowed the appeal.
In my judgment which was agreed to by the majority, I cited the same passage from the judgment of Raja Azlan Shah FJ in Loh Kooi Choon cited by Suffian LP in Phang Chin Hock and said, “I agree entirely with those observations.”
Loh Kooi Choon stood as the law of the country for 33 years. One would have thought that the issue regarding the basic structure of the constitution was settled.
Towards the end of his career, Gopal Sri Ram JCA was promoted to the Federal Court. He was a member of the panel that decided Sivarasa Rasiah v Badan Peguam Malaysia & Anor. [2010] 2 MLJ 333. Even though he was the most junior member of the panel, he delivered the judgment of the Court.
The issue was whether section 46A(1) of the Legal Profession Act 1976 was unconstitutional. The court, through the judgment of Gopal Sri Ram FCJ, held that it was constitutional.
Before discussing the issue of basic structure, let me dispose of this point first.
In his judgment, the learned Judge made this point: “Now although the article (article 10(2)(c) – added) says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso.”
When a judge or the court “reads into” or adds the word “reasonable” into Article 10(2)(c), is the judge or the court not effectively amending the Constitution? Is the judge or the court not encroaching into the jurisdiction on the Legislature (i.e. the Parliament)?
Can one judge of the High Court or a minimum two judges of the Court of Appeal, or of the Federal Court replace the function of two-thirds majority in both Houses of Parliament?
Is the basic structure principle laid down in Kasavananda Bharati the ratio or mere obiter of Sivarasa Rasiah?
The learned judge summarised the grounds on which the appellant challenged the validity of section 46A (1) of the Legal Profession Act 1976 as follows:
“The appellant challenged the constitutionality of s. 46A(1)... The challenge is based on three broad grounds. First, that the section violates his rights of equality and equal protection guaranteed by art. 8(1) of the Constitution. Second, that it violates his right of association guaranteed by art. 10(1)(c). Third, that it violates his right to personal liberty guaranteed by art. 5(1). He argues that in the event that any one of these rights is found to be violated, the section must be declared void as being inconsistent with the supreme law.”
(Tomorrow Part 2 — No judge is a Parliament).
Tun Abdul Hamid Mohamad is the former chief justice of Malaysia. He can be reached via tunabdulhamid@gmail.com , http://www.tunabdulhamid.my , https://tunabdulhamid.me