6 constitutional supremacy v parliamentary (1)

CONSTITUTIONAL SUPREMACY VERSUS

PARLIAMENTARY SUPREMACY

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.

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:

1. A higher law2. A limited parliament3. Federal set up 4. Fundamental rights5. Judicial review6. Special procedure for amendments7. Subversion and emergency

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.

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.

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”.

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.

•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.

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.

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.

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.

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…..”

“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”.

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’.

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.

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.

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’.

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 LimitsAbout 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

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.

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.

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.

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)

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]

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.

Since Merdeka, there have been four successful challenges in the courts on constitutional grounds against pre-Merdeka 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.

Constitutional Challengesa. 4 against pre-Merdeka lawsb.14 against post Merdeka lawsTotal = 18 c. of these 18 decisionsi.6 reversed on appeal ii. 2 rendered ineffective

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.

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.

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

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…

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.

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.

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

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

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).

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.

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.

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).

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.

PARLIAMENTARY SUPREMACY

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.

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.

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.