Constitutional Supremacy (Continuation)

Constitutional Supremacy means that the constitution is the supreme and highest law of the land. The Parliament or Legislature may pass laws provided that they are in line with the constitution. Any laws in conflict with the constitution will be deemed as unconstitutional and invalid by the courts. The Federal Constitution is the written constitution in Malaysia. Article 4(1) states that “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.” A written constitution represents a higher law, not merely because it is written, but because these rules are far more difficult to amend. The Constitution is usually amendable by special majorities as opposed to ordinary or simple majorities. In Malaysia, amendments to the Constitution usually require two-thirds of the total number of members of each House of Parliament. Requirements for amendments can be found in Article 159 of the FC.

Cases on Constitutional Supremacy

Marbury v Madison

President John Adams, before his term ended, had made many federal appointments, including William Marbury as justice of the peace in the District of Columbia. Thomas Jefferson, the new president, refused to recognize the appointment of Marbury. The normal practice of making such appointments was to deliver a "commission," or notice, of appointment. This was normally done by the Secretary of State whom at the time was James Madison. At the direction of Jefferson, Madison refused to deliver Marbury's commission. Marbury sued Madison, and the Supreme Court took the case. Chief Justice John Marshall wrote that the Judiciary Act of 1789, which spelled out the practice of delivering such commissions for judges and justices of the peace, was unconstitutional because it the gave the Supreme Court authority that was denied it by Article III of the Constitution. Thus, the Supreme Court said, the Judiciary Act of 1789 was illegal and not to be followed.

This was the first time the Supreme Court struck down a law because it was unconstitutional. It was the beginning of the practice of "judicial review."

Chief Justice Marshall explained the power of the constitution:

" It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "

Ah Thian v Government of Malaysia

Suffian L.P observed : " The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution written law may be invalid on one of these grounds: (1) Art 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Art 75".

Mamat bin Daud & Ors v Government of Malaysia

In this case, the application for leave under Article 4(4) arose as to whether Sec 298A of the Penal Code and Criminal Procedure Code were ultra vires the Constitution being in excess of the legislative power of the Parliament.

Mohamed Azmi SCJ : For the applicants to succeed, they must satisfy the court (a) leave is necessary under Art 4(4) & (b) they have an arguable case in that the application is not frivolous. Since the present application was not considered frivolous by the court, it allowed the applicants to canvass their case before the full court on the constitutionality and validity of the new section.

PP v Dato' Yap Peng

Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General

Cases involving inconsistency with the Constitution

Phang Chin Hock v Public Prosecutor

Federal Court held that "The rule of harmonious construction in construing Article 4 and Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in Article 159 are valid even if inconsistent with the constitution".

Loh Kooi Choon v Government of Malaysia

Federal Court rejected the argument that the Constitution as the Supreme law cannot be inconsistent with itself. In this case, Parliament amended Article 5(4), denying persons detained under restrictive residence law, right to production before a Magistrate. The amendment was given retrospective effect to independence day.