1. CONSTITUTIONAL SUPREMACY
VERSUS
PARLIAMENTARY SUPREMACY

2. SUPREMACY OF THE CONSTITUTION
• Definition
• Supremacy means the highest in authority
or rank.
• In the constitutional context - when the
framers of the Federal Constitution
completed the document, they considered
FC as the highest law of the land and also
the source of all governmental powers.

3. The adoption of a written and supreme
constitution, as the chart and compass,
the sail and anchor of a nation, has a
number of distinct implications, which
are as follows:

4. 1. A higher law
2. A limited parliament
3. Federal set up
4. Fundamental rights
5. Judicial review
6. Special procedure for
amendments
7. Subversion and emergency

5. 1. A higher law
• Implicit in the concept of a constitution is
that of a higher law that has superiority
over the institutions it creates, and that
takes precedence over all other laws.

6. In most states where there is a written
constitution, a distinction is made
between the law of the constitution and
ordinary law. In case of a conflict
between the two, the constitution
prevails.
The superior courts have the power to
invalidate government action on the
ground of unconstitutionality.

7. The rule of constitutional supremacy
stated in Article 4(1) of the Federal
Constitution: “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”.

8. a. supreme law – higher legal validity than any other
rule in society. All courts & administrators are required to
interpret legal, moral & social norms in light of the Constitution.
b. federation – refers to the State of Malaysia
including federal government
c. any law – in lights of Art 160(2). Refers to written law,
common law & recognised custom.
d. after Merdeka Day – after 31 Aug 1957
e. to the extent of the inconsistency
– a court may separate the valid from invalid & declare only the
offending part/s to be void = doctrine of severability.

9. •The consequences of Article 4(1)
are far-reaching.
Art 4(1) is strengthened by Articles
128 and 162(6).
Article 128 confers power on the
superior courts to determine the
constitutional validity of Federal
and state laws.

10. Article 162(6) lays down that any
court or tribunal applying the
provisions of any pre-Merdeka law
may apply it with such modification
as may be necessary to bring it into
accord with the Constitution.

11. Case: Loh Kooi Choon v Gov. of Malaysia
• Raja Azlan Shah FJ:
• “The Constitution… is the supreme law of the
land and embodying 3 basic concepts:
• a) the individual has certain fundamental
rights upon which not even the power of
the State may encroach.

12. Loh Kooi Choon v Gov. of Malaysia
• b) the distribution of sovereign power
between the States and the Federation, that
the 13 States shall exercise sovereign
power in local matters and the nation in
matters affecting the country at large.

13. Loh Kooi Choon v Gov. of Malaysia
• c) no single man or body shall exercise
complete sovereign power, but that it shall
be distributed among the Executive,
Legislative and Judicial branches of
government…..”

14. “Law” in Article 4(1), with reference to
Acts of Parliament, means federal law
consisting of ordinary laws enacted in
the ordinary way and not “Acts affecting
the constitution”.

15. Case: Phang Chin Hock v Public Prosecutor
• “Federal law” includes all laws which Parliament is
competent to pass, including federal laws passed
to amend the constitution, which amendments, if
enacted according to prescribed procedure, are
valid even if inconsistent with fundamental
liberties: an amendment, duly made, ‘becomes an
integral part of the Constitution, it is the supreme
law, and accordingly it cannot be said to be at
variance with itself’.

16. 2. A limited parliament
• The implications of these Articles are that
in Malaysia all persons and authorities,
including Parliament, are subject to the
provisions of the Constitution.

17. Their powers are limited and defined
and are to be found in the Constitution
itself. Any unconstitutionality is liable to
be challenged and invalidated in court.
The doctrine of the supremacy of
Parliament is not part of Malaysian
legal theory.

18. Case: Ah Thian v Government of Malaysia
• Lord President Tun Suffian affirmed the supremacy
of the Constitution:
• ‘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 legislatures in Malaysia is limited by
the Constitution and they cannot make any law
they please’.

19. Types of Limits on Parliament’s
powers
• 1. Substantive Limits
Limits relating to subject matter including
jurisdictional error, restrict fundamental rights,
violating the federal-state division of competence.
• 2. Procedural Limits
About how power must be exercised. In performing
legislative function, Parliament is obliged to comply
with the procedural requirements of Arts 2(b), 38(4),
66, 68, 159 & 161E. An example : Art 2(b) admission
of new territories into the Federation

20. 3. Federal set up
• Malaysia is a federation of states.
• There is a division of legislative executive,
judicial and financial powers between the
federal and state assemblies.
• This division is entrenched in the scheme
of the Constitution.

21. In the legislative sphere, for
example, Articles 74,77 and the
Ninth Schedule contain five
legislative lists. State assemblies
have exclusive powers in relation to
13 topics in the State list. Sabah
and Sarawak’s autonomy in sphere
allocated to them is quite
pronounced.

22. However, the Constitution permits some
flexibility by permitting the federal
government to act within the jurisdiction
of the states in a number of
circumstances, including a state of
emergency under Article 150 and power to
legislate for States under Article 76
involving matters such as relating to any
treaty or convention between federation &
other country.

23. 4. Fundamental rights
• The Federal Constitution (in Articles 5 to 13)
contains a chapter on fundamental liberties.
• Though Parliament is given extensive powers to
regulate these liberties on a wide range of
grounds, it cannot be denied that the
constitutional provisions do create ‘obstacles… in
the path of those who would lay rash hands upon
the ark of the Constitution’ (as per Lord
Birkenhead in McCawley v The King)

24. 4. Fundamental rights
• Superior court judges have shown great
unwillingness to enforce human rights.
• A reluctance to set aside federal or state legislative
enactments on the ground of violation of human
rights safeguards.
• Example: Menon v Government of Malaysia [1987]–
section of the Pensions (Amendment) Act which
discriminated against non-resident pensions was
held by the High Court violate Article 8. The decision
was reversed on appeal [1990]

25. 5. Judicial review
• Constitutional supremacy is maintained by
giving to the courts the power to review
executive and legislative acts on
constitutional grounds.
• Hundreds of executive actions have been
invalidated by the courts for violation of
the requirements of the Constitution.

26. Since Merdeka, there have been four
successful challenges in the courts on
constitutional grounds against preMerdeka legislation and 14 against
post Merdeka legislation. Of these 18
decisions, six were reversed on
appeal and two were rendered
ineffective by amendments to the
Constitution.

27. Constitutional Challenges
a. 4 against pre-Merdeka laws
b.14 against post Merdeka laws
Total = 18
c. of these 18 decisions
i.6 reversed on appeal
ii. 2 rendered ineffective

28. That leaves only 10 instances where
judicial review took hold and left a
lasting legal impact.
The number is indeed small but it
illustrates the theory of constitutional
supremacy and denies the omnipotence
of Parliament and the state assemblies.

29. However, judicial review is difficult to
achieve and sustain because of the
existence of Parliament’s special powers
to combat subversion and emergency
and the relative case with which
constitutional amendments have been
accomplished.

30. Mamat bin Daud & Ors v Government of
Malaysia [1988]
The issue was as to who should have
enacted section 298A of the Penal Code
(doing acts which were likely to cause disunity
among persons professing the religion of Islam) –
the Federal Parliament or the State
Assembly concerned?
Application of the doctrine of pith &
substance

31. Jurisdiction & locus standi
• In Ah Thian v Government of Malaysia [1976]
2 MLJ 112 at 113, Suffian LP summed up the
principles of legislative review.
• The courts have power to declare a written
law invalid on one of the three grounds…

32. Jurisdiction & locus standi
• The courts have power to declare a written law
invalid on one of the following three grounds:
• a. If it violates the federal-state division of powers. In
the case of federal written law, because it relates to
a matter with respect to which Parliament has no
power to make law & in the case of State written
law, because it relates to a matter with respect to
which the State legislature has no power to make
law: Art 74.

33. Jurisdiction & locus standi
• The courts have power to declare a written law
invalid on one of the following three grounds:
• b. If either Federal or State written law is
inconsistent with the Constitution e.g. if it violates
fundamental rights: Art 4(1)
• c. If a State written law is inconsistent with a Federal
law: Art 75.

34. Jurisdiction & locus standi
• The power to declare any law invalid on the ground
of violation of federal-state division of powers – is
subject to several restrictions:
• a. The challenge must lie by way of a proceeding for
a declaration that the law is invalid on the ground:
Art 4(3)
• -if the law was made by Parliament, in proceedings between
the Federation & one or more States
• -if the law was made by the Legislature of a State, in
proceedings between the Federation & the Government of
that State

35. Jurisdiction & locus standi
• The power to declare any law invalid on the ground of
violation of federal-state division of powers – is subject to
several restrictions:
• b. The proceeding may be brought by
-an individual v another individual or
-an individual v a Government or
- a Government v another Government
- a Government v an individual : Art 4(4)
• Art 4(4) shall not commenced without the leave of a judge of
the Federal Court

36. Jurisdiction & locus standi
• The power to declare any law invalid on the ground of violation
of federal-state division of powers – is subject to several
restrictions:
• c. The Federation and the State are entitled to be a party
to such proceedings to ensure that no adverse ruling is
made without giving the relevant government an
opportunity to argue to the contrary.
• d. Only the Federal Court has jurisdiction to determine
whether a law made by Parliament or by a State
legislature is invalid: Art 128 (1).

37. 6. Special procedure for
amendments.
• Though a Constitution is a special law, it must
provide an internal mechanism for growth and
change.
• This process must not be so difficult as to frustrate
(because a Constitution that will not bend will
have to be broken) nor so easy as to weaken the
safeguards of the basic law.

38. In Malaysia, most constitutional
amendments require a two-thirds
majority of the total membership of
each House.
In addition, the consent of the
Conference of Rulers and of the
governors of Sabah and Sarawak is
required for some changes.

39. 7. Subversion and emergency.
• The communist emergency cast a long
shadow on constitutional development.
• Under Articles 149 and 150 there are
certain limits on Parliament’s competence.
• Article 149 permits departures from four
fundamental rights provisions – Art 5(personal
liberty), Art 9(freedom of movement), Art 10(freedom of
speech, assembly & association) & Art 13 (right to property).

40. The powers of Article 150, unlimited
though they seem, cannot violate
provisions relating to six special
topics provided in Article 150(6A) –
matters of Islamic law, custom of the
Malays, native law or custom in Sabah
& Sarawak & matters relating to
religion, citizenship or language.

41. PARLIAMENTARY SUPREMACY

42. Definition
• It means the unlimited capacity of Parliament
to make or unmake any law whatsoever on
any matter.
• Inherent in this doctrine is also the inability of
the court to question the validity of an act of
parliament.

43. Dicey has explained this concept as the
power to make or unmake any law
whatever, and added further that no
person or body is recognised as having
the power to override or set aside the
laws made by parliament.
Parliamentary supremacy exists in the
United Kingdom as the constitution is
unwritten.

44. There are three features of parliamentary
supremacy:
1. Parliament can make law in any area.
2. No Parliament can bind its successor (a
Parliament cannot pass a law that cannot
be changed or reversed by a future
Parliament).
3. Nobody except Parliament can change or
reverse a law passed by Parliament.