Question 1: Explain your understanding of the concept of

Parliamentary Supremacy (as explained by Prof AV

Dicey) and the concept of Constitutional Supremacy.
Country with uncodified constitution practices parliamentary supremacy.
Parliamentary in UK is the highest authority, and no laws passed by them can be struck out
by anyone, even the courts.
Professor AV Dicey described 3 aspects of the parliamentary supremacy. The first is
Parliament is legally competent to legislate upon any subject matter. In the case of Burmah
Oil Company v Lord Advocate, War Damages Act 1965 was legislated by Parliament and
applied retrospectively. Another example is His Majesty’s Declaration of Abdication Act
1936, where King Edward VIII wanted to marry an American divorcee, but Church ruled that
King must marry someone pure. King Edward VIII was helped by the Parliament who passed
law to help Edward abdicate. In the case of Mortensen v Peters, international law states
government can govern within certain distance offshore, anything further is under
international laws, Court ruled that UK laws prevails in British territories when in conflict
with international laws.
The second aspect is that no parliament can bind its successors nor be bound by its
predecessors, or in other words continuing supremacy of parliament. In the case of Vauxhall
Estate v Liverpool Corporation, S. 7 of Land Acquisition (Assessment of Compensation)
Act, stated it will be applied forever, Parliament passed another Act with different
compensation scheme, House of Lord held that Parliament is always supreme with new laws
always prevail. In the case of Ellen Street Estate v Minister of Health, defense argued that
only express provision can repeal previous law, court held in all circumstances repeal
expressly or impliedly. However, the court ruled that the parliament may repeal impliedly.
The third aspect is that once parliament has legislated, nobody can enquire into the
validity of the legislation. In the case of Pickins v British Railways Board, the parliament
passes a private member’s bill to repeal the previous act. House of Commons supposed to
inform the people involved, but the step is skipped. Pickins claimed it is invalid for not
following procedure, Court held that as long as the bill passes through the 3 estates of realm,
no one can question the validity except the Parliament.
However, UK parliament is not so supreme because it needs to conform with EU laws
and EU law automatically becomes UK law (ex parte factor tame). In the case of AG v
Blackburn, Lord Denning stated that legal theories must sometimes give way to real politics.
A written constitution represents a higher law, not so much because it is written, but
because these rules are far more difficult to amend. Constitutional rules are usually
amendable by special majorities as opposed to ordinary or simple majorities. An example is
Art 159(3) of the Federal Constitution which provides that a Bill making any amendment
to the Constitution shall not be passed in either House of Parliament unless it has been
supported on a Second or Third Readings by the votes of not less than two-thirds of the total
number of members of that House.
 Hence, the term ‘supremacy’ means the highest in authority or rank and this may even
mean being in all-powerful position. The American Constitution is famous for its entrenched
chapter on fundamental freedoms vigorously guarded by courts. The US case of Marbury v
Madison also established judicial review to strike out unconstitutional laws in the country.
The Federal Constitution of Malaysia purports to be the supreme law of the
Federation. This much is claimed by Art 4(1) of FC which provides: 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.
Constitutional supremacy is the finality of the constitution over and above other
instruments or authority governing the affairs of a nation. In a constitutional democracy, the
people are the sovereign, the final authority and powers are derived from the
constitution. Constitutional supremacy means that the bindingness of the constitution, which
is the will of the people, on all authorities and persons in the country. This is because the
people make for themselves and adopt the constitution.
The implication of the supreme law is that the norms of the Constitution must have a
higher legal validity than any other rule in the society no matter in peace time or during
emergency, and in secular or theocratic states. Countries with supreme laws require its courts
to interpret legal, moral and social norms in the light of the Constitution and not the natural
law.
By virtue of Art 4(1) of FC, in Malaysia only the Constitution is supreme. English
constitutional lawyers speak of the supremacy of Parliament, which Dicey, a famous
professor of law, considered the dominant characteristic of the British Constitution from the
legal point of view. The British Parliament is indeed supreme. There is no law which it
cannot make, repeal or amend.
Unlike in Britain, Malaysia is a federation with a written constitution which is rather
rigid as mentioned above. Our Parliament does not have unlimited powers. The Parliament
derives its power from the constitution which divides legislative power between the
federation on the one hand and individual states on the other as stipulated by Art 73-79 of
FC.
In Malaysia, courts are able to invalidate laws passed by Parliament if the Parliament
were to legislate outside its powers. State law may also be invalidated by the courts on
grounds such as: outside the power of the State Legislative Assembly; inconsistent with the
Federal Constitution; or inconsistent with federal laws.
Take note of case law demonstrating the supremacy of the constitution. For example,
in the case of Ah Thian v. Government of Malaysia where 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 the Federal Constitution,
written law may be invalid on one of these grounds. The first would be under Art 74 of FC
where the federal legislature and state legislatures legislate in subject-matter beyond the
Ninth List. The second ground is in the case of State written law, because it is inconsistent
with the federal law under Art 75 of FC. The third ground is laws inconsistent with the
constitution under Art 4(2) of FC.
 In the case of Mamat bin Daud & Ors v. Government of Malaysia, the application
for leave under Art 4(4) of FC arose as to whether S. 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 held that, for the applicants to succeed, they
must satisfy the court that leave is necessary under Art 4(4) of FC and 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. Court agreed and declared it ultra vires.
In the case of City Council of Georgetown v. Government of the State of Penang, the
Federal Court applied Art 4 of FC to invalidate a State law which was inconsistent with
federal law by making reference to Art 75 of FC. In this case the Municipal (Amendment)
(Penang) Enactment 1966 was passed by the Penang State Legislature to administer
municipal affairs of the State. The petitioner claimed that the Enactment and related Orders
were inconsistent with Local Government Elections Act 1960 and therefore void. The court
applied Art 75 of FC and agreed that the Enactment and related Orders were void. It is
important to note that Art 75 does not apply if Parliament has no power to pass the relevant
Federal law.
In the case of Yeoh Tat Hong v. Government of Malaysia & Anor, it was argued that
a subsidiary legislation made by the State Authority in Penang under the National Land
Code 1965 was ultra vires and null and void. The applicant applied to the Federal Court for
leave to issue a writ of summons for declarations. The Federal Court held that the High Court
had jurisdictions to deal with the matter and thus no leave from the Federal Court was
required. It was also ruled that given the definition of “law” under Art 160 of FC the
subsidiary legislation in Yeoh Tat Hong was not law under Art 4 of FC.
In the case of PP v Dato’s Yap Peng, courts struck S. 418(A) of CPC where PP can
freely transfer the cases. The court held it ultra vires the Federal Constitution. In the case of
East Union (M) Sdn. Bhd. v. Government of the State of Johore & Government of
Malaysia, another argument raised was that before the NLC there was already uniform law-
though scattered in the various Enactments of the Malay States and in the Strait Settlements
and that “therefore the enactment of S. 100 of the NCL was not “for the purpose only of
ensuring uniformity of the law and policy”. Based on this line of argument, the applicant
company asked for a declaration that S. 100 of NLC was void as it was ultra vires Art 76(4)
of FC. The court held that as the contention was that Parliament had no power to pass the law
under challenged and that it was not an inter-governmental dispute, but one between a
company and federal and state governments-leave was therefore necessary. The federal
government had argued that the application by the company was superfluous. Suffian LP
ruled, inter alia, that, “…I do not think it is fair to deny the company opportunity of having
this matter ventilated in court”.
Important to note that the application of constitutional supremacy becomes more
difficult with the limitations imposed in Art 4(3) and (4) of FC.
Furthermore, under Art 159 of FC, Parliament is clothed with power to make
constitutional amendments that are inconsistent with the Constitution. So, could the Federal
Constitution still be said to be supreme in such a situation? In the case of Phang Chin Hock
v. Public Prosecutor, the Federal Court held “The rule of harmonious construction in
construing Art 4 and Art 159 of FC enables them to hold that Acts of Parliament made in
accordance with the conditions set out in Art 159 of FC are valid even if inconsistent with
the Constitution”.
Another case to cite is the case of Loh Kooi Choon v. Government of Malaysia,
where the Federal Court rejected the argument that the Constitution as the Supreme law
cannot be inconsistent with itself. In this case Parliament amended Art 5(4) of FC, denying
persons detained under restrictive residence law, right to production before a Magistrate. The
amendment was given retrospective effect to Independence Day.