CONSTITUTIONALCONSTITUTIONAL SUPREMACY:SUPREMACY:

MYTH OR REALITY?MYTH OR REALITY?

The supremacy of the Constitution is subject to a number of

exceptions, problem of judicial reluctance to test legislative &

executive actions & a large number of administrative practices are not in accordance with the spirit of the

Constitution.

1. Article 4 (2) Article 4(2)(a) Courts cannot intervene on

grounds not permitted by Art 9(2). Only on security, public order, public health or punishment of offenders.

Article 4(2)(b) on grounds mentioned in Art 10(2) – security, public order, morality etc.

Does it make laws restricting freedom of speech immune from judicial review?

Whether Official Secret Act or Sedition Act are ‘necessary or expedient’?

2. Ouster clauses There are provisions in the FC that seek to oust

or exclude judicial review of executive discretion or legislative action. Examples:

a. Emergency Ordinance promulgated under Art 150(2B) can be made judge-proof by a simple ouster clause as Art 150(8)(b)(ii)?

b. Second Sch, Part III, Para 2: ‘A decision of the federal Government under Part III of this Constitution (dealing with citizenship) shall not be subject to appeal or review in any court’.

2. Articles 149 & 150 Art 149 authorises Parliament to enact simple

majority laws to combat subversion & valid even if they transgress the guarantees of personal liberty. Laws like the Internal Security Act & Sedition Act are derived from or justified by Art 149

Art 150 – once a proclamation of emergency has been made by the King, Parliament is authorised to suspend the entire Constitution except 6 topics in Art 150(6A) including Islamic law, custom of Malay, native law, religion, citizenship & language

3. Residual nature of human rights

Fundamental liberties subject to extensive regulation by the legislature & the executive including the Police Act 1967, the Societies Act 1966, The Printing & Publications Act 1984, the Official Secret Act 1971 etc.

Harsh & oppressive law cannot be questioned in the courts..

4. Easy Amendments

The frequency & the relative ease with which constitutional amendments have been accomplished, weakens the belief in constitutional supremacy.

5. Absolute power A large number of governmental powers are

not subject to any real control including Art 150 emergency & Art 145 A-G powers are outside the regime of accountability & answerability to any one.

6. Ineffectiveness of Judicial Review Judicial Review is the litmus test of

constitutional supremacy. Despite Arts 4(1), 162(6) & 128, judicial

review of legislative & executive acts on constitutional grounds is not a significant feature in the Malaysian Constitution because:

a. Government uses Parliament’s special powers to combat subversion & emergency very adroitly in order to arm itself with laws like the ISA.

6. Ineffectiveness of Judicial Review

b. Courts interpret subjective power literally & reluctance to interpret the implied limits or explicit standards of the basic charter.

c. Judges steeped in the British tradition of parliamentary supremacy are reluctant to invalidate Acts of Parliament.

7. Islamic Laws Art 3(1) Islam the religion of the Federation Is Malaysia a secular or Islamic state? How must the conflict between constitutional

supremacy in Art 4(1) & Islam as the religion of the Federation in Art 3(1) be resolved?

Is freedom of religion in Art 11(1) subject to Article 3(1)?

Art 121 (1A) confer autonomy to Syariah Courts has given rise to a spate of cases involving jurisdictional conflict between Syariah & civil courts.

8. Private sector relationship A number of judicial decisions indicate that

the humanising provisions of Part II of the FC on fundamental liberties do not apply to the private sector, to employer-employee, parent-child & school-pupil relationships.

It is alleged – a guideline for public law relationship only. Private law matters do not penetrate – including home, clubs, universities, schools and work places affairs.