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Constitutional supremacy

Constitutional supremacy




this note is reference for Constitutional Law I (LAW437) students in Universiti Teknologi MARA, Malaysia. It's prepared by azrin hafiz



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Constitutional supremacy Constitutional supremacy Document Transcript

  • Constitutional Law 8/24/2013 azrin.hafiz / BLS (Hons) @ UiTM 1 Constitutional Supremacy v Parliamentary Supremacy LAW 437 : CONSTITUTIONAL LAW 1 prepared by: azrin hafiz 1 What is a constitutional supremacy? • A doctrine where by the constitution is supreme and the government rules in accordance with the constitution and at the same time the power of government is limited by the constitution. prepared by: azrin hafiz 2 • The Constitution is the supreme law of Malaysia • Any law passed after 31 Aug 1957 which is inconsistent with the Constitution shall be void, to the extent of the inconsistency. prepared by: azrin hafiz 3 What is a parliamentary supremacy? • A peremptory rule of constitutional law, that legislative assemblies can make or repeal laws as they see fit, supreme over the dictates of the judicial branch, and subject to the stated jurisdiction of the legislative assembly, if any. prepared by: azrin hafiz 4 prepared by: azrin hafiz 5 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: prepared by: azrin hafiz 6
  • Constitutional Law 8/24/2013 azrin.hafiz / BLS (Hons) @ UiTM 2 i. A higher law ii. A limited parliament iii. Federal setup iv. Fundamental rights v. Judicial review vi. Special procedure for amendments vii. Subversion and emergency prepared by: azrin hafiz 7 1. A higher law • It has superiority over the institutions it creates, and takes precedence over all other laws. Constitution Ordinary Law prevail unconstitutional X prepared by: azrin hafiz 8 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”. prepared by: azrin hafiz 9 a. supreme law – higher legal validity than any other rule in society whether federal or state, enacted by Parliament or SLA. 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 – an act may not be void as whole, only the inconsistent part may be void = doctrine of severability. prepared by: azrin hafiz 10 The consequences of Article 4(1) are far-reaching. Art 4(1) Art 128 + Art 162(6). strengthened by prepared by: azrin hafiz 11 Article 128 confers power on the superior courts to determine the constitutional validity of Federal and state laws. 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. prepared by: azrin hafiz 12
  • Constitutional Law 8/24/2013 azrin.hafiz / BLS (Hons) @ UiTM 3 Case: Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 • Raja Azlan Shah FJ: “the constitution is the supreme law of the land and embodying 3 body concepts: Fundamental rights Distribution of sovereign power Separation of power prepared by: azrin hafiz 13 Case: Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 • “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’. prepared by: azrin hafiz 14 2. A limited parliament Yang di Pertuan Agong Parliament Court Attorney General Auditor General Senator National Land Council Consolidated Funds National Development Plan prepared by: azrin hafiz 15 Case: Ah Thian v Government of Malaysia [1976] 2 MLJ 112 • 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’. prepared by: azrin hafiz 16 Types of Limits on Parliament’s power Substantive Limits • Limits relating to subject matter including: - jurisdictional error - restrict fundamental rights - violating the federal-state division of competence. Procedural Limits • About how power must be exercised. • In performing legislative function, parliament is obliged to comply with the procedural requirement of Art 2(b), 38(4), 66, 68, 159 & 161E prepared by: azrin hafiz 17 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. prepared by: azrin hafiz 18
  • Constitutional Law 8/24/2013 azrin.hafiz / BLS (Hons) @ UiTM 4 3. Federal-State Division of Power Legislative Executive Judicial Financial Powers Federal State prepared by: azrin hafiz 19 Art 74 + Art 77 + 9th Schedule Federal List State List Concurrent List Supplementary State List for Sabah & Sarawak Supplementary Concurrent List for Sabah & Sarawak 28 13 14 6 9 prepared by: azrin hafiz 20 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) prepared by: azrin hafiz 21 • 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] prepared by: azrin hafiz 22 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. prepared by: azrin hafiz 23 Constitutional Challenges: a. 4 against pre-Merdeka laws b.14 against post Merdeka laws c. of these 18 decisions i.6 reversed on appeal ii. 2 rendered ineffective prepared by: azrin hafiz 24
  • Constitutional Law 8/24/2013 azrin.hafiz / BLS (Hons) @ UiTM 5 Case: Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 • 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 prepared by: azrin hafiz 25 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: If it violates the federal-state division of powers If either Federal or State written law is inconsistent with the Constitution If a State written law is inconsistent with a Federal law prepared by: azrin hafiz 26 • 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) b) The proceeding may be brought by: - an individual v another individual, - an individual v a Government, - a Government v another Government; or - a Government v an individual : Art 4(4) prepared by: azrin hafiz 27 • 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). prepared by: azrin hafiz 28 Thank You prepared by: azrin hafiz 29