Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

  1. 1. Prepared by: Md. Zubair Kasem Khan.Md. Zubair Kasem Khan. LL.B(Hon’s)LL.B(Hon’s) Master of Comparative LawsMaster of Comparative Laws (MCL)(MCL) International Islamic UniversityInternational Islamic University Malaysia (IIUM).Malaysia (IIUM). 06/04/14 1
  2. 2. ж Definition of Constitution & Constitutional Supremacy in different point of views. ж Objectives & Purposes of Constitutional Supremacy. ж Historical Background of the Federal Constitution of Malaysia. ж Supremacy Clause in Federal Constitution of Malaysia. ж A deep look over the points……… Contents of the Presentation 06/04/14 2
  3. 3. To understand the essence of the word “Constitutional Supremacy”, first I'd like to discuss a more fundamental i.e. meaning of the word “Constitution”. A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed ( New Oxford American Law Dictionary; pp-2051). “…. a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public “( Vernon Bogdanor : Constitutions in Democratic Politics; pp- 04). Definitions of Constitution & Constitutional Supremacy. 06/04/14 3
  4. 4. According to the sociological aspect, there is a big contractual relationship between the state and his citizens which is called as SOCIAL CONTRACT. If so, then in a democratic country, the constitution is treated as the FUNDAMENTAL PART of that SOCIAL CONTRACT. CONSTICONSTI TUTIONTUTION DeterminesDetermines the Naturethe Nature ofof the State.the State. Ascertain the form ofAscertain the form of Govt.Govt. Distribute powersDistribute powers among the 3 Organsamong the 3 Organs of the Govt.of the Govt. Regulate relationsRegulate relations among theamong the Governmental Organs.Governmental Organs.Determines theDetermines the relationship betweenrelationship between the Government andthe Government and Confers FundamentalConfers Fundamental Rights on theRights on the Citizen.Citizen. Provides procedureProvides procedure to amend theto amend the Provision of theProvision of the Constitution.Constitution. Determines the LimitsDetermines the Limits of the Govt.of the Govt. 06/04/14 4
  5. 5.  Constitutional supremacy is a doctrine where by the constitution is supreme and the government rule in accordance with the constitution and at the same time the power of government is limited by the constitution in order to escape a type of tyrant of government, and the rule of law is prevailing.  A system of government in which the law- making freedom of parliamentary supremacy cedes to the requirements of a Constitution. The Principles of Constitutional Supremacy first came to the debate by the Theory of A V Dicey in 1885. 06/04/14 5
  6. 6. In Edgar v. Mite Corporation, 457 U.S.624(1982); the Supreme Court ruled: A state statute is void to the extent that it actually conflicts with a valid Federal statute In effect, this means that, a State law will be found to violate the supremacy clause when either of the following one condition(or both) exists: - Compliance with both the Federal and State laws is impossible, or - "...state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress(Federal Constitution)....." [Dow Chemical Co. v. Exxon Corp., 139 F.3d 1470 (Fed Cir 1998)]  It has superiority over the institutions it creates, and takes precedence over all other laws. Constitution Ordinary LawOrdinary LawX Prevail Unconstitutional NULL AND VOID. 06/04/14 6
  7. 7. The objectives and purposes of the presence of constitution supremacy means and refers to that-  Absolute sovereignty belongs to the constitution itself, dedicated powers to the government through its people for being exercised within the limit prescribed by it as a sacred trust.  The State shall exercise powers and authority of the constitution through the chosen representatives of the people.  The principles of governance, democracy, freedom, equality, tolerance and social justice, as enunciated by the constitution, shall be fully observed. Objectives & Purposes of Constitutional Supremacy. 06/04/14 7
  8. 8. Fundamental rights shall be protected and guaranteed by the constitution. The Supremacy Clause makes invalid any law passed by a State or local government that is in conflict with a federal law. Constitution maintains a close relationship among the state, government and its organs. 06/04/14 8
  9. 9.  The federal constitution of Malaysia evolved from the events of the past.  The very first written constitution of Malaysia was adopted in 1895 in the state of Johor by Sultan Abu Bakar.  The federal constitution embodies the combination of British & Indian concept of constitutions but did not follow the process like- Constitutional Assembly.  It has been developed based on previous constitutions drafted by commission of Foreign Experts In Constitutional Law.  To mitigate debates between State Sultans and the Federal Govt. Article 71(4) has been imposed containing the “ESSENTIAL PROVISIONS” set out in the Eighth Schedule for harmonious integration. 06/04/14 9
  10. 10. Article -4, Clause-1 of the Federal Constitution of Malaysia ensures the supremacy of the constitution as- “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.” 06/04/14 10 Supremacy Clause in Federal Constitution of Malaysia.
  11. 11. Supreme Law – higher legal validity than any other rule in society whether federal or state, enacted by Parliament or SLA. In the salient case of Loh Kooi Choon Vs. Government of MalaysiaLoh Kooi Choon Vs. Government of Malaysia [1977] 2 MLJ 187; Raja Azlan Shah FJ held that :- “……the constitution is the supreme law of the land and embodying 3 body concepts- Distribution of sovereign power, Fundamental rights and Separation of power…..” Federation – refers to the State of Malaysia including federal government. 06/04/14 11
  12. 12. Any Law – In the light of Article-160(2) of the Federal Constitution of Malaysia, “Law”“Law” refers to written laws, common laws & recognized customs in Malaysia in so far as it is in operation in the Federation or any part thereof. After Merdeka Day – On the basis of Article-160(2) after 31 August 1957. It also, however, covers law passed before Merdeka Day. This doctrine has been proved and well established by the case of Assa SinghAssa Singh Vs. Menteri Besar of JohoreVs. Menteri Besar of Johore (1969) 2 MLJ 30. The Federal Court held that “……although the application of the Restricted Residence Enactment(RRE) had resulted in the violation of Singh's rights under Articles 5 and 9 [1] of the Constitution, these violations were Constitutional because Article 162 [2] permitted the grandfathering 06/04/14 12
  13. 13. To The Extent Of The Inconsistency – an act may not be void as whole, only the inconsistent part may be void(Doctrine Of Severability). In the case of Ah Thian Vs. Government of MalaysiaAh Thian Vs. Government of Malaysia [1976] 2 MLJ 112; Lord President Tun Suffian affirmed the supremacy of the Constitution as:- “……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’……” 06/04/14 13
  14. 14.  The adoption of a written this written Supreme Constitution, as the charter compass, the sail and anchor of a nation, has a number of distinct implications, which are ⇒ 06/04/14 14
  15. 15. 06/04/14 15 Limited Parliament The limitation of the Parliament of Malaysia has been confirmed by Ah Thian v Government of Malaysia [1976] 2 MLJ 112 case. According to this case- Lord President Tun Suffian affirmed the supremacy of the Constitution as- “……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…..”
  16. 16.  Limits relating to subject matter including:  Jurisdictional error  Restrict fundamental rights  Violating the federal- state division of competence.  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 06/04/14 16 Types of Limits on Parliament’s power Substantive Limits Procedural Limits
  17. 17.  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. 06/04/14 17
  18. 18.  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 Mc. Cawley v The King). 06/04/14 18
  19. 19.  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. 06/04/14 19
  20. 20.  In Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at 113, Suffian LP summed up the principles of legislative review. 06/04/14 20 If it violatesIf it violates the federal-the federal- state divisionstate division of powers.of powers. If it violatesIf it violates the federal-the federal- state divisionstate division of powers.of powers. If either FederalIf either Federal or State writtenor State written law islaw is inconsistentinconsistent with thewith the Constitution.Constitution. If either FederalIf either Federal or State writtenor State written law islaw is inconsistentinconsistent with thewith the Constitution.Constitution. If a StateIf a State written law iswritten law is inconsistentinconsistent with awith a Federal law.Federal law. If a StateIf a State written law iswritten law is inconsistentinconsistent with awith a Federal law.Federal law. The courts have power to declare a written law invalid onThe courts have power to declare a written law invalid on one of the three grounds:one of the three grounds:
  21. 21. 06/04/14 21

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