SUPREMACY OF THE

CONSTITUTION

1515821 MOHD ZAIDI BIN ZAMBRI

PARLIAMENTARY SUPREMACY CONSTITUTIONAL SUPREMACY

• Parliament is supreme. It can • Constitution is supreme and It

amend or alter the constitution at cannot be amended except
any time. through special procedure.

• Unlimited power of Parliament

• parliament cannot go against
by the constitution
constitution
• It happen when the constitution is
not written in one place
WHY CONSTITUTION SHOULD BE
SUPREME?

• It is supreme because it creates other institutions for

example the 3 main organs of the government.

• Constitution is the product/signify the will of the

people or represents the aspiration of the people and
therefore should be given new recognition.
• In Marbury v. Madison Marshall CJ said:

• “ …certainty all those who have written constitution

contemplate them as forming the fundamental and
paramount law of the nation. Consequently any act
of government or legislature which is repugnant to
the constitution is void”
WHAT IS THE POSITION IN MALAYSIA?
(Refer to A. 4(1) of the FC)

Important elements:
• Supreme law
• Federation
• Any law
• After Merdeka Day
• To the extent of the inconsistency
• Ah Tian v Government of Malaysia

Suffian LP; “The doctrine of the supremacy of

parliament does not apply in Malaysia. Here
we have a written constitution. The power of
Parliament and the state legislature in Malaysia
is limited by the constitution and they cannot
make any law they please
• A. 4(3), 162(6),128(1),128(2) confers
power on the superior courts to determine
the constitutional validity of federal and
state law and to invalidate them on the
ground of unconstitutionality.
CASES
Mamat b. Daud v. Government of Malaysia
• Issue: whether s. 298(A ) of the Penal Code ultra vires the
FC?
• The Supreme Ct held that S. 298(A) is unconstitutional to
the extent of inconsistency.

Datuk Yap Peng V. PP

• Issue : S. 418(A) CPC ultra vires the FC.
• The court held that A. 418(A) was null and void as
against the FC.
Nordin b. Salleh v. Gov. of Kelantan
• Issue: whether the amendment to state constitution
ultra vires the FC.
• It was held that State Enactment was declared to be
contrary to the FC.

See also the case of City Council of George Town &

Anor v. The Gov. of the State of Penang & Anor.
See also the case of City Council of George Town &
Anor v The Gov. of the state of Penang & Anor

In this case the City Council of George Town ( Transfer

of Functions) order 1966 and the Municipal
(Amendment) Penang Enactment 1966 were void by
virtue of A. 175 of the Constitution on the ground that
they were inconsistent with the Local Government
Elections 1960 of the Federation
The application of constitutional supremacy become
more difficult with the limitations imposed in A. 4(3)
and 4(4).

These two clauses make it clear that leave of Federal

Court is necessary. In East Union the Federal Court
granted the leave and explained the reasons.
In the Mamat Bin Daud, Mohamed Azmi SCJ held that,
“for the applications to succeed, they must satisfy the
court firstly that leave is necessary under A. 4(4) and
secondly, that they have an arguable case in that the
application is not frivolous
In the case of Stephen Kalong Ningkan, the plaintiff
sought declaration to the effect that Emergency
(Federal Constitution of Sarawak) Act 1966 was null
and void. The High Court held that he could not ask the
High Court to make a declaration that a Federal Law in
invalid on the ground mention in A. 4. it was also held
that the leaves of a Federal Court judge must be
obtained before proceedings for a declaration of the
invalidity of a Federal Court can be brought in the
High Court.
QUESTIONS???
• A. 4(1) only states on the position of pre Merdeka
laws. What happen to pre Merdeka law or existing
laws?

• Are the laws still effective?

• State your authorities.

• A. 162(1),(2), (6) of the FC

• The implications of A. 4(1) and A. 162(6) are clear

that all persons or authorities including the
parliament are subject to the provisions of the
Constitution.
CASES
Chia Kin Sze v. MB of Selangor
• Issue: Whether Restricted Residence Enactment (pre
Merdeka laws) inconsistent with A. 5 FC.
• It was held that A. 4(1) applied to laws passed after
Merdeka Day therefore law passed before Merdeka could
not be said as contrary to the FC.

• However take note that this was a wrong view and

was subsequently dissented in Aminah v. Supritendent
of Prison, Assa Singh v. MB of Johore, Surider Singh
Kanda.
Assa Singh v. MB of Johore

• Issue: Whether Restricted Residence Enactment (pre

Merdeka laws) inconsistent with A. 5 FC.
• It was held that A. 162FC which means that the ct
will have to modify any pre Merdeka laws to bring it
into accord or harmony with the FC.
Surider Singh Kanda v. The Federation if malaya

• In this case the court had to deal with conflict between

the provisions of the Police Ordinance and the provisions
of the FC.
• The Privy Council held that :
• “In a conflict of this kind between the existing law and
the constitution the constitution must prevail. The court
must apply the existing law with such modification as
may be necessary to bring it into accord with the
Constitution”
Datuk Seri S. Samy Vellu v. S. Nadarajah. One of the issues
raised was on the question whether SS133-136 of CPC
inconsistent to A.145(3) of the FC.

•It was held that:

•“ The mere fact that CPC is a pre Merdeka law does not
mean that it is necessarily inconsistent with FC . The ct
must apply the pre Merdeka law with such modification
which terms include amendment, adaptation and repeal as
may be necessary to bring that provision of the pre
Merdeka law into accord with the FC.”
• Article 4(1) states that in the event where a post
Merdeka law is inconsistent with the FC then it will
be void to the extent of inconsistency

• Hence that raises a question

WHEN THE LAW HAS BEEN HELD VOID TO

SOME EXTENT, WHAT HAPPEN TO THE
REST??
A court is not obliged to invalidate the entire law. It
may separate of severe the valid from the invalid and
declare only the offending part or parts to be void. This
is the doctrine of severability
In Malaysia Bar v Government of Malaysia, Harun J

“in applying the doctrine of severability, held that the

words ‘or’ of any committee of the Bar Council or a
Bar Committee appearing in Section 46A(1) of the
Legal Profession Act in so far as they affected
paragraph (a) therefore were void, ‘but the remaining
provisions are not void’.
Difference between A.4(1) and 162(6)

Under A. 4(1) if law clashes with FC the courts have no

choice but to declare it (or part of it) null and void.
Courts cannot modify the law of fill in the gaps in it to
incorporate the constitution’s promises.

Under A. 162(6) and (7). Courts have a wider choice.

They may amend, adapt or repeal an offending piece of
legislation.
• The question of supremacy of the FC arise in to two
situation.

1.IS IT SUPREME WHEN IT CAN BE AMENDED?

TO WHAT EXTENT IT IS SUPREME AND CAN
BE AMENDED?

Methods of amendment:
• Amendment requiring special majority
(A. 159(3) )
• Amendment not requiring special majority
(A. 159(4) )

• Amendment requiring consent of the Rulers

A. 159(5) )

• Amendment requiring consent of the Governor of

Sabah and Sarawak
(A. 161E )
• Raja Azlan Shah in Loh Kooi Choon explained

• “ 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 sole and permanent as we can make it , there is no
permanence in it. There should be certain amount of flexibility so as to
allow the country’s growth . In any event they must be taken to have been
intended that it can be adapted to changing conditions and that the power
of amendment is an essential means of adaptation. Constitution has to
work not only in the environment in which it was drafted but also centuries
later. “
Phang Chin Hock v PP
Suffian LP explained:

“it is correct that amendments made the constitution are valid only consistent
with its existing provisions, then clearly no change what so ever may made
to the constitution; in other word A. 159 is superfluous, for the constitution
cannot be changed or altered in any way, as it has been craved granite. If
our constitution makers had intended that their successors should not in
any way their handiwork, it would have been perfectly easy for them to
provide; but no where in the constitution does it appear that was the
intention, even if they had been do unrealistic as to habour such intention
…on contrary apart from A.159 there are many provisions showing that the
constitution should be a living document intended to be workable between
the partners that constitute the Malayan (Later Malaysia) polity, a living
document that is reviewable from time to time in the light experience and if
need be amended.
Reid Commission in proposing power to amend
constitution said:

“ it is important that the method of amending the

constitution should be neither so difficult as to produce
frustration nor so easy as to weaken seriously the
safeguards which the constitution provides”
2. During emergency the constitution is suspended.

During this time the constitution is suspended, and power of the executive
will be enhanced or increased. However even under A.149 & A.150 there are
certain limits on the parliament’s competence. A.149 permits departure from
4 fundamental rights provision ( A.5, A.9, A10, A13). Other fundamental
rights cannot be violated.

A.150 on the other hand cannot violate provisions relating to six special
topics in A.150(6A) i.e. Islamic Law. Custom of Malays, native of Sabah and
Sarawak, matters relating to religion, citizenship or language.
CONCLUSION AND OBSERVATION

The constitutional supremacy under A. 4(1) and

judicial review on constitutional grounds are qualified
by A.4(2). The effect is that if a law made by
parliament restricts right under 9(2) and is based on
grounds not permitted by this Article (security, public
order, public health or punishment of offenders),
parliament’s legislative power is not controlled by the
constitution
There are ouster clauses that oust or exclude judicial
review of executive discretion or legislative action. For
example A.150(8) bars judicial enquiry into the validity
of emergency ordinance. The Second Schedule, Part III
Para 2
“ a decision of the Federal Government under Part III
of this Constitution ( dealing with citizenship) shall not
be subject ore review in any court”
A.149 & A.150 are so vital during the drafting of the
constitution in order to prevent the shadow of
communist threat. These provisions will arm the
executive and legislature with extraordinary powers to
combat subversion and emergency.
E.g. A.149 authorises the parliament to enact simple
majority laws to combat subversion and these laws
shall be valid even if they transgress certain rights.
Once a proclamation of emergency be made by YDPA
under A.150, Parliament is authorised to suspend the
entire Constitution except of six matters (A.150 (6A)),
fundamental rights can be suspended, federal-state
division power can be violated and election can be
postponed.
The constitution’s fundamental liberties are subject to
extensive regulation by the legislature and the
executive in the form of licenses, permits and
censorship for example:
Police Act 1967, the Societies Act 1966, The Printing
and Publication Act 1971

-Power of judicial review.

Minister v Persatuan Aliran

The Appellant had raised important constitutional

issues under Articles 8, 10 and 152. The Supreme
Court brushed aside the constitutional question and
decided the case in favour of the government by
reference to administrative law principles of illegality,
irrationality and procedural impropriety.
In Muhammad Hilman Idham & Ors v Kerajaan
Malaysia & Ors where the COA held that Section 15(5)
UUCA did not relate to public order or morality and
the restriction was found to be unreasonable.

In Dato’ Ambiga & Ors v Menteri Dalam Negeri &

Ors, the High Court allowed the applicants’ application
on the basis that the decision of the minister declaring
BERSIH as an unlawful is questionable and tainted
with irrationality
Ah Tian v Government of Malaysia
Suffian LP; “The doctrine of the supremacy of
Parliament does not apply in Malaysia. Here we have a
written constitution. The power of Parliament and the
state legislature in Malaysia is limited by the
Constitution and they cannot make any law they please.