The document discusses two key doctrines of constitutional supremacy in Malaysia: 1) The doctrine of pith and substance allows courts to examine laws based on their true purpose and effect rather than their literal language. This ensures laws are not used for "colourable" or fraudulent purposes that exceed the legislature's powers. 2) The doctrine of severability holds that if parts of a law contradict the constitution, the unconstitutional parts can be severed, leaving the remaining valid parts intact. This allows courts to invalidate specific provisions while preserving the overall law. The document provides examples of cases where these doctrines were applied to determine the constitutionality of various legislation.

1. CONSTITUTIONAL SUPREMACY
1. DOCTRINE OF PITH AND SUBSTANCE
2. DOCTRINE OF SEVERABILITY

2. 1. DOCTRINE OF PITH AND SUBSTANCE
Mamat b. Daud v Govt. of Malaysia
• The applicants were charged under a new
section (298A)under the Penal Code, a
federal law.
• The new provision made the doing of an act
on the grounds of religion that had the
likelihood of causing, among others, disunity
etc. between persons of the same or
different religions is an offence.

3. The petitioners had acted as bilal,
khatib & imam at a Friday prayer
without being so appointed under
the Terengganu Administration of
Islamic Law Enactment.
It was argued that such a law was
unconstitutional as Islam was a matter
for the state, not the federal
parliament.

4. In a slim 3-2 majority the court agreed with the
contention and declared the provision invalid.
It was held that examining section 298A as a
whole, it is, in its pith & substance, a law on the
subject matter of religion with respect to which
only the States have power to legislate under Arts
74 & 77.
Section 298A is a piece of ‘colourable legislation’ in
that it pretends to be a legislation on ‘public order’
when in pith & substance it is about Islamic
religious offences.

5. Doctrine of pith & substance and
doctrine of colourable legislation was
highlighted where:
a. the language of a piece of legislation
is broad or vague
b. the legislation could fall into one or
more category

6. The court will not interpret the law
literally but purposively:
a. the object, purpose & design of
the legislation is examined
b. the substance & not the form of
or outward appearance of the
legislation is examined

7. The object of the doctrine of pith & substance is
two-fold:
a. To ensure against colourable (i.e. mala fide or
malicious or fraudulent) exercise of legislative
power whereby the legislature pretends to do one
thing but is actually doing another.
b. to ensure that the division of legislative power
is not too rigid.
A power exercise for one purpose may
incidentally or indirectly touch upon another
purpose.

8. Case: Ketua Pengarah Jabatan Alam Sekitar &
Anor v Kajing Tubek & Ors (Bakun case)
• In this case, the question arose out of
the fact that both parliament or
Sarawak Legislative Assembly had the
concurrent power to make a law
regulating the production, supply and
distribution of electricity.

9. However, the question of
environment which was at the
centre of this case lies within the
jurisdiction of the state and thus
the requirement imposed by the
federal law was inapplicable.

10. 2. DOCTRINE OF SEVERABILITY
• It means that the bad parts of the
law being severed leaving the good
parts intact.
• In Assa Singh v Menteri Besar Johor
[1969], a case involving a law,
Restricted Residence Enactment 1933,
that has been passed before the
independence.

11. In this case, the law relating to public
security did not conflict with Art 9. But as
the Enactment did not have provisions
similar to Art 5(3) & 5(4). Article 162(6)
requires the provisions of the Enactment
to be read with article 5.
Art 5(3) inform ground(s) of arrest & allow to
consult legal practitioner
Art 5(4) produced before a magistrate within
24 hours once arrested

12. Surinder Singh Kanda v Government of the
Federation of Malaya
• Part of the law contravened the Federal
Constitution, was partly declared as void.
• In this case, the power of a police
commissioner to dismiss his subordinates
was held to be unconstitutional as this was
against the provision of the existing
constitution.

13. Dewan Undangan Negeri Kelantan v
Nordin b Salleh
• An amendment passed by the Kelantan
State Assembly, which sought to prevent
party-hopping (requiring an Assemblyman
who ‘crosses the floor’ to vacate his seat &
seek re-election) was held to be
unconstitutional as, the court ruled, it
imposed restriction on the fundamental
right to freedom of association (Art 10)
guaranteed by the Federal Constitution.