Constitution (Amendment) Act 1971 - sensitive matters
This page sets out what the Constitution (Amendment) Act 1971 changed in Malaysia's Federal Constitution, when and how it was passed, and how it connects to the Sedition Act 1948.
what happened
The Constitution (Amendment) Act 1971 — Act A30 — took effect on 10 March 1971. It was passed by a Parliament that had only just resumed sitting: after the violence of 13 May 1969 a Proclamation of Emergency was issued under Article 150 and the country was run through the National Operations Council, with Parliament reconvening on 20 February 1971. The 1976 Malaya Law Review survey of Malaysia's constitutional amendments records that the Act embodied many of the conclusions reached by the National Consultative Council, a body that included members of all races and political parties except the Democratic Action Party, which had declined to sit on it.
The core of the Act is a new Article 10(4). Article 10(1) guarantees freedom of speech; the new clause lets Parliament, when restricting speech in the interest of security or public order, "pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181". Those four references are citizenship, the national language, the special position of the Malays and the natives of Sabah and Sarawak alongside the legitimate interests of other communities, and the sovereignty of the Rulers. Contemporary legal writing and The Malaysian Bar describe them as the four "sensitive" issues.
The Act also reached inside the legislature itself. Article 63(2) protects members of Parliament from court proceedings over anything said in the House; the new Article 63(4) switches that protection off for anyone charged under a law made under Article 10(4), or under the Sedition Act 1948 as amended by the Emergency (Essential Powers) Ordinance No. 45, 1970. Article 72(4) does the same for State Legislative Assemblies. The clauses that preserve immunity for speech about the Yang di-Pertuan Agong or a Ruler short of advocating abolition of the constitutional position — Articles 63(5) and 72(5) — came later, in 1993.
A third strand is entrenchment. Section 7 of the Act extended the two-thirds requirement in Article 159(3) to Bills amending any law made under Article 10(4), and expanded Article 159(5) so that the consent of the Conference of Rulers is needed to amend Article 10(4) and laws made under it, Part III, Article 63(4), Article 72(4), Articles 152 and 153 — and Article 159(5) itself. Alongside this the Act defined "official purpose" for the national-language article, inserted "and natives of any of the Borneo States" throughout Article 153, and repealed the clauses of Article 161A that had denied Borneo natives a fixed proportion of scholarships; the Bill's Explanatory Statement said the aim was parity between those natives and Malays in West Malaysia.
The practical instrument that gives Article 10(4) effect is the Sedition Act 1948, whose section 3(1)(f) makes it a seditious tendency to question the same set of constitutional provisions, and whose section 3(2) preserves its specified exception for discussion of implementation. Section 3(3) makes intention irrelevant, section 4 sets the penalties, and section 5 requires the Public Prosecutor's written consent to prosecute. The Federal Court upheld section 4(1) as constitutional in Public Prosecutor v Azmi bin Sharom in October 2015. On what the 1971 Act means, the sources set out competing positions: the government stated in Parliament that the Bill would protect national harmony while leaving implementation open to discussion; Lim Kit Siang proposed an all-party commission instead; the 1976 survey calls it the most important and controversial amendment to that date and frames the argument as one about whether it is the best route to national unity; Zairil Khir Johari reads it as part of a repressive trajectory; Abdul Aziz Abdul Rahman argues the Sedition Act is effective in protecting national security and should stay.
the working
What the sources say
established
The Act is cited as the Constitution (Amendment) Act 1971 and is numbered Act A30 of 1971.
18 Mal. L.R. 59 · Federal Constitution (reprint as at 1 November 2010)
established
Every provision inserted or amended by Act A30 is recorded in the official reprint of the Federal Constitution as being "in force from 10-03-1971".
Federal Constitution (reprint as at 1 November 2010) · Jaspal Kaur Sadhu Singh
established
After the 13 May 1969 violence, a Proclamation of Emergency was issued under Article 150 and the country was governed through the National Operations Council; Parliament was reconvened on 20 February 1971, and the reconvened Parliament passed the Act after debate.
established
The same 1976 Malaya Law Review survey records that the Act "embodied many of the conclusions arrived at during the deliberations of the National Consultative Council," a body set up during the emergency and comprising members of all races and political parties except the Democratic Action Party, which declined the invitation.
established
Section 2 of Act A30 added Clause (4) to Article 10 and changed the opening words of Article 10(1) from "Subject to Clauses (2) and (3)" to "Subject to Clauses (2), (3) and (4)".
Federal Constitution (reprint as at 1 November 2010) · Jaspal Kaur Sadhu Singh
established
Article 10(4) reads: "In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law."
Federal Constitution of Malaysia · corroborated in Jaspal Kaur Sadhu Singh
established
The provisions referenced in Article 10(4) are Part III (citizenship), Article 152 (national language), Article 153 (special position of the Malays and natives of Sabah and Sarawak, and the legitimate interests of other communities) and Article 181 (sovereignty of the Rulers). Contemporary legal writing and The Malaysian Bar summarise these as the four "sensitive" issues.
established
Section 3 of Act A30 added Article 63(4), which reads: "Clause (2) shall not apply to any person charged with an offence under the law passed by Parliament under Clause (4) of Article 10 or with an offence under the Sedition Act 1948 as amended by the Emergency (Essential Powers) Ordinance No. 45, 1970." Article 63(2) is the provision giving members immunity from court proceedings for anything said in Parliament.
Federal Constitution (reprint as at 1 November 2010) · Federal Constitution
established
Section 4 of Act A30 added Article 72(4), in the same terms as Article 63(4), removing the equivalent immunity for members of State Legislative Assemblies.
Federal Constitution (reprint as at 1 November 2010) · 18 Mal. L.R. 75
established
Article 63(5) and Article 72(5), which preserve immunity for things said about the Yang di-Pertuan Agong or a Ruler except where the speaker advocates abolition of the constitutional position concerned, were not part of Act A30; the official reprint records both as inserted by Act A848 with effect from 30 March 1993.
established
Section 7 of Act A30 amended Article 159. Article 159(3) was extended so that the two-thirds requirement applies also to "a Bill for making any amendment to a law passed under Clause (4) of Article 10"; and Article 159(5) was expanded by inserting the words "Clause (4) of Article 10, any law passed thereunder, the provisions of Part III," the figure "63(4)", the figure "72(4), 152," and the words "or to this Clause".
Federal Constitution (reprint as at 1 November 2010) · 18 Mal. L.R. 75
established
Article 159(5) as amended provides that a law making an amendment to the listed provisions "shall not be passed without the consent of the Conference of Rulers"; because "or to this Clause" was inserted, Article 159(5) itself cannot be amended without that consent.
Federal Constitution (reprint as at 1 November 2010) · Major changes to the Constitution
established
Section 5 of Act A30 inserted Article 152(6), defining "official purpose" for the national-language article as "any purpose of the Government, whether Federal or State, and includes any purpose of a public authority".
Federal Constitution (reprint as at 1 November 2010) · 18 Mal. L.R. 75
established
Section 6 of Act A30 inserted the words "and natives of any of the Borneo States" after "Malays" in Article 153 Clauses (1), (2), (3), (6) and (8), and added Clauses (8A) and (9A); section 8 repealed Article 161A Clauses (1) to (3), which had previously excluded natives of the Borneo States from a fixed proportion of scholarships and similar facilities.
Federal Constitution (reprint as at 1 November 2010) · 18 Mal. L.R. 75
established
The Explanatory Statement to the Constitution (Amendment) Bill 1971 stated that the purpose of the Article 153 change was to "provide for parity of natives of any of the Borneo States with Malays in West Malaysia".
established
The Sedition Act 1948 had already been amended in 1970 by the Emergency (Essential Powers) Ordinance No. 45, 1970, promulgated during the emergency; Articles 63(4) and 72(4) refer to that amended Act by name.
Federal Constitution (reprint as at 1 November 2010) · Sedition Act 1948 (Act 15) reprint
established
Section 3(1)(f) of the Sedition Act 1948 defines a "seditious tendency" to include a tendency "to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution".
established
The Act's ordinary defences are narrowed for those matters. Section 3(2)(b) exempts pointing out "errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (1)(f) otherwise than in relation to the implementation of any provision relating thereto)", and section 3(2)(c) similarly excludes paragraph (1)(f) matters from the defences of lawful persuasion and of pointing out causes of ill will.
established
Section 3(3) provides that the intention of the person charged "shall be deemed to be irrelevant" if the act, words or publication in fact had a seditious tendency; section 4(1) sets a first-offence penalty of a fine not exceeding five thousand ringgit or imprisonment not exceeding three years or both, and up to five years' imprisonment for a subsequent offence; section 5 requires the written consent of the Public Prosecutor before any prosecution under section 4.
adjudicated
In Public Prosecutor v Azmi bin Sharom, decided on 6 October 2015, the Federal Court held that section 4(1) of the Sedition Act 1948 is constitutional, treating the restriction as one permitted by Article 10(2) of the Federal Constitution.
Columbia Global Freedom of Expression case note · Federal Court rules Sedition Act constitutional
established
Jaspal Kaur Sadhu Singh records that then Prime Minister Najib Razak announced in June 2012 that the Act would be abolished and replaced with a National Harmony Act; that the Sedition (Amendment) Act 2015 was enacted in April 2015 but, as at her 2020 article, had not come into force; and that the government elected in May 2018 took the position of repealing it but "the legislation remains on the books".
Jaspal Kaur Sadhu Singh · No enforcement date for Sedition Act amendments
where accounts differ
The parts nobody agrees on
contested
The 1976 Malaya Law Review survey states that Act A30 "is the most important and controversial to date" among amendments up to that point, and that "the controversy centres over whether this Act represents the best highway to national unity and the best formula to prevent a recurrence of racial riots in Malaysia." The article does not resolve that question.
contested
The same survey describes the Act's aims as "the declared twin objectives of curbing public discussion on certain 'sensitive' issues and rectifying the racial imbalance in certain sectors of national life". This is a description of the objectives as declared at the time, not an independent finding about effect.
contested
In moving the Bill, Prime Minister Tun Abdul Razak stated the government's position that the constitutional provisions concerned were carefully balanced protections for the interests of all communities and that removing them from public discussion would protect national harmony; he also said the proposed restriction would not cover discussion of their implementation. Lim Kit Siang opposed the Bill and proposed that it be sent to an all-party parliamentary commission.
contested
Zairil Khir Johari, then Member of Parliament for Bukit Bendera and a Democratic Action Party spokesperson, writing in New Mandala, calls the 1971 changes the "sensitive matters amendment" and argues they form part of a constitutional trajectory towards, in his words, "more exclusivism, regression and repression". This is his assessment.
contested
Tan Sri Abdul Aziz Abdul Rahman, a former legal officer who Malay Mail reports helped draft the 1970 version of the Sedition Act, argues the Act should be retained, saying it "is effective in protecting the country's security", and notes that it cannot be repealed or amended without the consent of the Conference of Rulers and a two-thirds majority in Parliament. This is his position.
contested
Jaspal Kaur Sadhu Singh argues that the Federal Court in Azmi Sharom adopted a narrow, "four walls" and strictly legalist approach to Article 10, and proposes a "rights-expansive" reading instead. This is her argued position, not a settled account of Malaysian doctrine.
uncertain
The 1976 Malaya Law Review analysis states that the removal of parliamentary and state-assembly immunity was effected "by an amendment of Articles 62 and 72 respectively", whereas the official reprint of the Constitution attributes the parliamentary change to Article 63(4). The reprint's provenance notes are the more specific record.
18 Mal. L.R. 75 · Federal Constitution (reprint as at 1 November 2010)
uncertain
No reported prosecution or judgment has been located that clearly relies on Article 63(4) or Article 72(4) for words spoken in a legislative chamber; this finding concerns reported public legal material and does not establish that no unreported case exists.
searched: judiciary, Attorney General’s Chambers, Parliament and legal-database records
still being researched
- What the division figures were for the Second and Third Readings of the Constitution (Amendment) Bill 1971, and which parties and members voted for or against.
- The date and content of the Conference of Rulers' consent, and the procedure followed for it in 1971.
- Whether the National Consultative Council's deliberations were ever published, and how closely the Bill tracked them.