SUPREMACY OF THE CONSTITUTION

What is constitutional supremacy?

- refers to when the constitution is the supreme law of the land
- Malaysia practicing constitutional supremacy which can be construed through Art 4(1) of FC
- Art 4 of FC means FC is the supreme law of the land in which any law passed after Merdeka day
to the extent inconsistency to be void.

5 importance elements in this Article:

1. Supreme under this arctic means the higher law, primary sources of law in Malaysia
2. any law: can be defined under Art 160 of FC
3. After Merdeka day: Law enacted under Merdeka Day
4. Inconsistence to be void: Any law after Merdeka Day not accordance with FC to the extent to
be void

An Tian v Govt of Malaysia: “Parliament is not supreme in Malaysia as the power of State as well
as the parliament is being limited by FC

CASES

City Council of George Town v Govt State of Pahang

Issue: whether S.398(1)(b) of Municipal (amendment) of Penang was void because it is
inconsistent with S.3 of Local Govt Act?
Judgement: the said provision is void since it is inconsistent with FC by virtue of Art 75

Mamat bin Daud v Govt of Kelantan

Issue: whether s.298(A) of Penal Code is under State or Federal jurisdiction
Judgement: the said provision should be passed by parliament as it is under federal jurisdiction not
the state legislative assembly

Nordin bin Salleh v Govt of Kelantan

Issue: whether amendment made to the state constitution is ultra vires to Art 10(1)(c)
Judgement: the state enactment which requires an assemblyman who crosses the floor to vacate
and seek re-election violate Art 10(1)(c)

Status of laws enacted BEFORE Merdeka day

Art 4 of FC only deals with the law enacted after Merdeka day, thus in determining the status of law
enacted before Merdeka day, Art 4 of FC should be read together with Art 162 of FC. According to
Art 162(1)(2) of FC, if the laws before Merdeka day found to be inconsistent with FC, it should be
modified in order for it to be in accordance with FC

Chia Kim Sze v MB Selangor

Ct in this case held that Art 4(1) only applied to the law enacted after Merdeka day. That is to say,
even the existing aw not in accordance to FC, it is still valid law. The judge in this case has make a
wrong view and his judgement has been dissented in the case Aminah v Superintendent of
Pusan

Surrinder Singh Khanda v Federation of Malaysia

Lord Denning state that “The federation of Malaysia came into being on 31st Aug 1957,
thenceforward, the constitution was supreme law of federation. If there is any conflict between
existing law and FC, existing law need to be modified to accord with FC.

Assa Singh v MB Johore

The ct held that, to determine the validity of law, if the law enacted before Merdeka day, Art 162(2)
(6)(7) of FC will be applicable to them. But if it is the law enacted after Merdeka day, then Art 4 of
FC will be applicable to them.

How far supreme is FC?

If it is too supreme, why it still can be amended?

- According to Raja Azlan Shah in the case of Looh Kooi Chan, the FC needs to be amended in
order to suit the new circumstances since it has been constructed long time ago. FC is to be
considered as the living document that has to be amended from time to time to suit new
circumstances.
- Besides, the method of amendment also has been incorporated in Art 159 of FC
- Four methods of amendment
1. Art 159(3): amendment requires 2/3 majority
2. Art 159(4): amendment requires simple majority
3. Art 159(5): amendment requires consent of ruler
4. Art 161E: amendment requires consent from Governor Sabah and Sarawak

If it is too supreme, how about during emergency under Art 150?

- during emergency, the power of executive i.e. YDPA will increase as the constitution will be
suspended as stated in the case of Phang Chin Hook.
- However, there are several limitations for YDPA to make laws during emergency as provided
under Art 149 as well as Art 150(6A) of FC

POSITION OF ISLAM IN MALAYSIA CONSTITUTION

Status of Islam in Malaysia

1. Art 3 of FC provides that Islam is the religion of Federation but all other religion may be
practiced in harmony under Art 11
2. Historical of Art 3 - during the construction of FC, alliance party send the memorandum to the
Reid Commission headed by Lord Reid but their memorandum being opposed by the Malay
Rulers.
Reid Commission then decides to leave the matter for the local people to decide.However,
dissent opinion Madde by Justice Abdul Hamid which he stated that there is nothing wrong
for Islam to be the the religion for federation since there is so many countries around the
 world put their religion as federal matter. In the white paper, it stated that the position if
Islam will not affect the present position of federation as the secular state. Thus, for today
by virtue of Art 3, Islam was the religion of the federation but retain to be state matters
under List II of ninth schedule.
3. Limitation of Art 3 (Secular features in the constitution)
• Art 3(4) stated that nothing under this act derogates from any other provision of the
constitution. That is to say, no law can be extinguished as the result of Art 3. This is what was
held in the case of Che Omar Che Soh where the parliamentary law on drug trafficking
provided for mandatory death cannot be held invalid on the ground of unislamic.
• Art 4 determine the FC as the supreme law not the Shariah law.
• There is nothing mentioned shariah as the part of law under Art 160 on the definition of law
• The intention of the person who negotiated for independence and those who draft the
constitution to create Malaysia as the secular state where in the white paper paragraph 57
stated that “the position of Islam will not affect the present position of federation as the secular
state
• Islam only as the state matter
• Freedom of religion under Art 11(1)

Teoh Eng Huat v Kadhi Pasir Mas - Minor doesn't have constitutional right to convert to Muslim
without parents permission
- Limited jurisdiction of Syariah Court Art 121A

Ainan v Abu Bakar - evidence act apply rather than Islamic law

Norlela Mohamad Habibullah v Yusuf Maldoner - The Shariah ct has no jurisdiction to the right
of custody since the marriage has not been registered under Shariah law even though parties to
the marriage are Muslim

PP v Mohd Noor Jaafar - Offence under S.5(1) of the Islamic religious school outside age percept
of Islam which cause the Shariah ct has no jurisdiction
• The person shall not be a Muslim to become a Prime Minister but to be a YDPA must be a
Muslim.

4. Advantages of Art 3 (Islamic features in the constitution)

• Govt support for religion of Islam show rejection to the secularism
• Prof Shad Saleem in interpreting Art 3 stated that Art demolishes the church state separation
• Dr Aziz Bakri, art 3 had desecularized the state although it cannot be said as full-fledged Islamic
state
• State has no power to punish crime which violate the percept of Islam
• Para 1 of List II of ninth schedule permits state legislation to punish offences by Muslim who
against the percept of Islam as decided in the case of Sulaiman Takrib v Kerajaan Negeri
Terengganu where S.14 of SCOT to be declared as against the percept of Islam
• Muslim subject to Shariah law - All muslim are subjected to the Islamic law in matter of
succession, testate interstate, divorce, legitimacy, guardianship and others.
• YDPA and all state rulers should be a Muslim except in Sarawak

5. Establishment of Shariah Court plus amendment to Article 121 of FC

Tonglah Jumali v Kerajaan Johor where the High ct declare that although Johore enactment
does nit have provision concerning conversion out of Islam, Shariah ct still have jurisdiction to hear
the case.

6. Concept of Malay - relates with the religion of Islam as defined under Art 160
- Case Lina Joy v Majlis Agama Islam

7. Freedom of religion under Art 11(1) does not absolute freedom since it is subject to Art 11(4)(5)

Under Art 11(4)

A) non-Muslim is forbidden by state law from preaching their religion to Muslim
B) According to Prof Harding, Art 11(4) was inserted because of public consideration rather than
religious priority, thus the allegation made by non-Muslim which stated that Art 11(4) result to
unequal treatment to them is not true

Art 11(5)
A) It was held that the non-Muslim religious conduct can only be regulated on the ground of public
health, morality and public order
B) In contrast, Muslim are subjected to many more religious restraint due to power of the state to
punish Muslim for offences against the percept of Islam in accordance wit schedule 9, List II
Para 1
C) Kamariah bt Ali v Kerajaan Kelantan

8. Islamic practice - Azan, islamic programmes on tv

9. Wider interpretation of Islam in court - Meor Atiqurrahman v Fatimah Sihi (HC)
Define Islam as “the way of life” - Lina Joy
Islam is the dominant religion in the federation and freedom of religion is not freedom of choice of
religion

Conclusion: Implication of Art 3(1)

1. To recognise status of Islam over other religion
2. Federation act as entity to profess Islam and must discharge religious obligation
3. Federation is not a human being thus it is impossible for federation to manifest all the religious
obligation

According to Prof Shad Faruqi, “Malaysia is not full-fledge Islamic state and also not full fledge
secular state. It is hybrid

Suggestion to harmonise Shariah is Islamic law:

1. Amendment to Art 4(1) - This article should be amended to provide “except in relation to the
matters covered by schedule 9, List II item 1, this constitution shall be the supreme law of
federation
2. Art 3(4) - This art should be deleted
3. Amendment to Art 11(1) - Include “except person subject to shariah, everyone….”
4. Amendment to schedule 9 List II, item 1 - States shall be given power to all matters covered by
Shariah, no need to specify

EXECUTIVES

1. PROBLEMATIC QUES ON APPOINTMENT AND DISMISSAL OF PM BY YDPA WHEN LOSS

OF CONFIDENCE OCCUR:
The power to appoint Prime Minister by YDPA has been vested under Art 43(2)(a) which requires
two conditions:
- The appointee must be a member of HOR
- The appointee also must be likely to command confidence of the majority of the house

Tun Dato Hj Mustapha v Tun Adnan Robert & Datuk Pairin Kitingan - The court held that the
head of state has to appoint PM based on the seat secured by the political party in the election
under Art 6(3) of the State Constitution. If the head of state omits to do that, he is constitutionally
exercise his duty to appoint PM

If the PM loss confidence, under Art 43(4), he may either request YDPA to dissolve the parliament
or by his own accord resign from his office. However, under Art 40(2)(b), YDPA is not bound by this
advice to the pre0mature dissolution of Parliament.

How to determine there is loss of confidence?

- through formal voting that has been decided in the case of Stephen Kalong Ningkan
- through surrounding circumstances as decided in the case of Datuk Amir Kahar

2. PUBLIC SERVANTS
a) Public servant as defined in Art 132(1)(a)-(f) is part of executive where they are the persons
whose implement the decision made by the parliament.
• armed forces
• judicial and legal services
• general public services of federation
• police force
• Repealed
• the joint public service Art 144
• public service of each state
• Education service

Not a public servant - Art 132(3)(4)

b) Rights and privilege of Public servant

No absolute right to:
• Security tenure (hold office during pleasure)
• term of service (may be altered without consent)
• pension
Has right to:
• Impartial treatment Art 136
• Pension Art 47
• recovery of arrears
• Tortious claim
• proportionality in punishment

c) By virtue of Art 132(2A) and in the case of Haji Ariffin v Govt of Pahang, public servants hold
office during the pleasure of YDPA (no security tenure) where all matters related to pension,
transfer and compensation are determined by the authority

d) In other words, public servants has no right against transfer (Pengarah Pelajaran Wilayah v
Loot), no right to hold office until retire and no right to compensate for the loss of office

e) The rationale behind all this is PS are employ for public good, thus the authority has right to
dismiss him if he is no longer for public good

The cases PS protected under Art 135(2) - Right to be heard

- It is only applicable in the case of dismissal or reduces in rank but not in the case of termination
- unlike termination, both dismissal and reduces in rank case acquire element of penalty or
punishment
- by virtue or the case of Dhingra v Union of India, the PS was punished if either he is
i) he was deprived rights to hold post
ii) he was visited by evil consequence such as for forfeiture of payment, loss of seniority,
substantive rank, misconduct, incompetence
What is dismissal? What is reduce in rank? Termination case

Removal from the office does not
necessarily mean dismissal
Govt of Malaysia v Mahan
Singh (Fed Court) - Pf service
was terminated and he was
pensioned off premature age of
49, 10% of his pension was
ordered to be forfeited. He was
not giving a hearing before being
terminated. It was termination, not as previously and his
dismissal
Mahan Singh v Govt of
Malaysia (Privy Council) - Lord
Diplock stated that any removal
by whatever name if it is
connected with the misconduct
and element of termination
involve element of punishment,
then it was dismissal. Thus app’s
right to be heard was dismissed,
null and void
A reversion to former post is not 1. Termination due to contract -
reduction in rank provided that the Ganasundram v PSC
public servant was not already 2. Compulsory retirement
confirmed with her new post case 3. Abolition of office public officer
4. Reversion to former post -
Pengarah Pelajaran v Loot - It is Munusamy v PSV
not reduction in rank to transfer a 5. Suspension
schoolmaster from one school to 6. Interdiction
another if he continue to be
employed in the same category
remuneration remain the same
even though he loses supervisory
duty
Similar with Munusamy v PSC

JUDICIARY

1. INDEPENDENCE OF JUDICIARY
It can be defined as the ability of the judges to decide cases without being interfered with other
factors. Based on Sir Brownies Wilkinson, a judge should be free from any pressure from others in
deciding the particular case. There are several factors of securing independence judiciary as it is
very important for the process of check and balance in the system of administration in Malaysia
Judicial appointment - Art 123 on the qualification
a) Citizen in Malaysia
b) 10 years experience in legal service (Badan Peguam Malaysia v Kerajaan Malaysia)

Art 122B(1)-(4) (Procedure of appointment)

(2) for appointment of COA
(4) for appointment of judge other than FC, COA and CJ - PM consult with chief judges, lord
president and high court judge
(3) for appointment of CJ - PM consult with minister if involved the appointment of High court
Sabah and Sarawak
(1) Pm advise YDPA after consult with C.O.R if C.O.R does not agree, PM still can proceed in the
case of Datuk Seri Anwar Ibrahim.
*extensive consultations not apply in the case of appointment of the judicial commissioner Art
122AB

Art 122(1), 122A, 122AA, 1221A

Security tenure
• how long in service - Art 125(1)
• Salary - Art 125(6)
• May resign from office - Art 125(2)
• Removal - Art 125(3), 125(4), 125(9), 125(3A), 125(3B)

Process of removal
- 125(3) Chief Minister of PM represent before YDPA that the judge concerned either
a) breach of the code of ethics (Allied Capital v Mohd Latiff)
b) Inability of physical or mind

- 125(4) YDPA appoint tribunal - Tribunal make report YDPA based on it but decision made by
YDPA

As decided in the case of Dato’ Hj Mohd Salleh Abbas v Tan Sri Dato' Hamid
• Composition of tribunal being challenged on the dismissal of Tun Salleh Abbas
• Tribunal may recommend dismissal or other sanctions based on Art 125(3B)

Process of transfer
- Art 125(7) explain judge is immune in parliament unless more than 1/4 of total number of the
houses not SLA. Case Raja Segaran v Bar Council of Malaysia
- Art 126: Judge has right to punish person for contempt of the court

Differences between judges and public servants

Alexander Hamilton - “next to permanency of office, nothing can contribute more to the
independence of the judges than a fixed provision for their support… In the general course of
human nature, a power over a man's subsistence amounts to a power over his will.”
The above quotation explains the permanency of the position of judges in Malaysia as compared to
the other public servants

Hj Ariffin v Govt of Pahang - The ct stated that nothing is permanent service because every
member of public servant except for auditor general and JUDGES hold office during the pleasure
of YDPA
Hold office here including subject matter of appointment, promotion, transfer, salaries, leaves and
other benefits are controlled by the authority unlike in the case of judges
JUDGES PUBLIC SERVANT DEFINED UNDER ART 132(1)(a)-(f)

Art 125(1) hold office until retirement No right to hold office until retire

Art 125(6) no adjustment to salary Uncertain

Has right to pension No absolute right to pension

Art 122C has right against the transfer No right against the transfer

Case: Visu Sinadural Case: Pengarah Pelajaran Wilayah Persekutuan v

Loot

1. Art 122B
2. Art 105(1)
3. Art 139(4)
4. Art 141A (2)
5. Art 114(1)
6. Clause 2 Article 182