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Page 1: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

Prepared by:Md. Zubair Kasem Md. Zubair Kasem Khan.Khan.LL.B(Hon’s) LL.B(Hon’s) Master of Comparative Master of Comparative Laws (MCL)Laws (MCL)International Islamic International Islamic University Malaysia (IIUM).University Malaysia (IIUM).

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Page 2: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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

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Page 3: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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.

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Page 4: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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.

CONSTICONSTITUTIONTUTION

Determines Determines the Naturethe Nature

of the State.of the State. Ascertain the form Ascertain the form of Govt.of Govt.

Distribute powers Distribute powers among the 3 among the 3 Organs of the Organs of the

Govt.Govt.Regulate relations Regulate relations

among the among the Governmental Governmental

Organs.Organs.Determines the Determines the

relationship relationship between the between the

Government and Government and the Governed. the Governed.

Confers Confers Fundamental Fundamental Rights on the Rights on the

Citizen.Citizen.

Provides Provides procedure to procedure to amend the amend the

Provision of the Provision of the Constitution.Constitution.

Determines the Determines the Limits of the Govt.Limits of the Govt.

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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.

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Page 6: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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 statuteIn 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 LawX

Prevail Unconstitutional NULL AND VOID.

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Page 7: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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.

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Page 8: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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. 04/07/23 8

Page 9: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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.

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Page 10: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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.”

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Supremacy Clause in Federal Constitution of

Malaysia.

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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 Malaysia Loh 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.

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Page 12: Constitutional Suprimacy (Perspective Federal Constitution of Malaysian).

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 Singh Vs. Menteri Assa Singh Vs. Menteri Besar of Johore 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 of pre-independence laws……” 04/07/23 12

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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 Malaysia Ah 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’……”

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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

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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…..”

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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

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Types of Limits on Parliament’s power

Substantive Limits Procedural Limits

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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.

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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).

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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.

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In Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at 113, Suffian LP summed up the principles of legislative review.

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If it If it violates violates

the the federal-federal-

state state division of division of powers.powers.

If either If either Federal or Federal or

State State written law written law

is is inconsistent inconsistent

with the with the ConstitutionConstitution

..

If a State If a State written law written law

is is inconsisteinconsistent with a nt with a Federal Federal

law.law.

The courts have power to declare a written law invalid The courts have power to declare a written law invalid on one of the three grounds:on one of the three grounds:

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