A Direct Challenge to Constitutional Supremacy and Representative Democracy?

The Constitution of the State of Melaka (Amendment) Enactment 2026, passed on 14th July 2026, which sanctioned the appointment of members to the Melaka State Legislative Assembly, raises a fundamental constitutional question that goes to the very foundation of our constitutional democracy.

The issue before the nation is a simple one.

Can a State Legislature amend its Constitution to introduce appointed Assemblymen when:

FEDERAL CONSTITUTION MANDATES THAT MEMBERS OF A STATE LEGISLATIVE ASSEMBLY SHALL BE ELECTED?

The answer is NO.

The amendment is inconsistent with the Federal Constitution, violates the mandatory framework governing State Constitutions, and undermines representative democracy, which is a fundamental part of the Federal Constitution.

I.THE FEDERAL CONSTITUTION IS THE SUPREME LAW

Article 4(1) of the Federal Constitution provides:

"This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void."

All laws enacted in Malaysia must conform to the Federal Constitution.

The State of Melaka derives its constitutional existence as one of the constituent States of the Federation from Article 1(2) of the Federal Constitution.

The Constitution of the State of Melaka derives its constitutional authority from Article 71, read together with Part I of the Eighth Schedule to the Federal Constitution, which prescribes the essential constitutional framework that every State Constitution must adopt.

Therefore, a State Constitution is subordinate to the Federal Constitution.

A State Legislature cannot, through constitutional amendment, expand its powers beyond those conferred by the Federal Constitution, as occurred in the recent Melaka amendments.

Article 71 and the Eighth Schedule do not empower a State Legislature to deviate from the mandatory provisions prescribed for State Constitutions, nor to override the clear intention of the framers of the Federal Constitution.

II. THE EIGHTH SCHEDULE MANDATES AN ELECTED LEGISLATURE

The key constitutional provision is found in Section 4(1) of the Eighth Schedule.

It provides:

"The Legislative Assembly shall consist of such number of electedmembers as the Legislature may by law provide."

Accordingly, this requirement has been incorporated in the Melaka State Constitution since Merdeka under Article 11 of the Melaka State Constitution.

Every word in this provision is significant.

The operative word is "shall."

This is mandatory.

More importantly, the Constitution confers only one legislative discretion upon the State Legislature.

It may determine only the number of elected members.

This is the only constitutional power granted.

Where the Federal Constitution expressly specifies the category of members that may comprise a Legislative Assembly, a State Legislature possesses no constitutional authority to create an entirely new category of appointed legislators.

The intention of the constitutional framers is unmistakable.

Legislative authority at the State level must originate from the electorate, not from executive appointment.

III. THE FEDERAL CONSTITUTION ITSELF DEMONSTRATES THAT APPOINTMENTS ARE PERMITTED ONLY WHERE EXPRESSLY AUTHORISED

The Federal Constitution is an integrated code whose provisions must be read harmoniously.

Whenever the framers intended legislative membership to arise by appointment rather than election, they said so expressly.

For example:

Article 45 expressly authorises the appointment of Senators to the Dewan Negara.

Likewise, the Eighth Schedule expressly allows the appointment of a Speaker to the state Legislative Assembly who is not an elected member.

However, even in that exceptional situation, the Constitution expressly provides that:

This constitutional exception is highly significant. It demonstrates two important principles.

First, the framers clearly recognised the distinction between elected and appointed legislators.

Second, whenever they intended an exception to the principle of election, they expressly provided for it.

No similar provision exists permitting appointed State Assemblymen.

This omission is deliberate, not accidental.

Applying the well-established principle of constitutional interpretation—expressio unius est exclusio alterius—the express authorisation of appointed Senators and a non-voting State Speaker necessarily excludes the creation of appointed Assemblymen by implication.

CONCLUSION

The issue before us concerns the supremacy of the Federal Constitution and the preservation of representative democracy as envisaged by the framers of our Constitution.

It has been suggested that Pahang and Johor previously amended their State Constitutions to provide for appointed members of their Legislative Assemblies, and that Melaka is following this model.

However, this argument does not determine the constitutional validity of the Melaka amendment.

Simply put, two wrongs do not make a right.

The Eighth Schedule circumscribes the constitutional amending power of a State Legislature and cannot be exercised in a manner that is inconsistent with its mandatory constitutional requirements.

The withdrawal of the Pakatan Harapan Assemblymen from the Melaka State Government was undoubtedly a strong political statement. However, political protest alone is insufficient to safeguard the Constitution.

While the opposition opposed the amendment on grounds of democratic principle and the people's electoral mandate, the issues raised extend beyond politics into the realm of constitutional law. It ought now to proceed to the constitutional forum. As there is a genuine question as to whether the Constitution of the State of Melaka (Amendment) Enactment 2026 is consistent with the Federal Constitution, that question should be referred to the Federal Court, preferably by way of a direct constitutional reference, for an authoritative determination.

Waytha Moorthy Ponnusamy

President

Malaysian Advancement Party

26th July 2026