The Federal Constitution

The term supremacy indicates the highest authority or rank and could even be known as being in an all-powerful position. The word constitution refers to a codified and uncodified body of rules governing the people as well as the government. Constitutional supremacy refers to the system of government in which the lawmaking freedom of parliamentary sovereignty abandons to the requirements of a constitution as the constitution is supreme. This is because the Parliaments authority is derived from the constitution. It could be inferred that all laws passed has to be in line with the constitution. If a passed law is deemed as to be in contrast with any provision in the constitution then it could be taken to court and challenged as unconstitutional. The Federal Constitution of Malaysia is the supreme law of federation. It is the fundamental and basic law of the land which act as a yardstick to measure the validity of other laws. According to the Article 4 of the Federal Constitution, it states that the constitution is the supreme law in the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its inconsistency. As in the case of PP v Dato Yap Peng, the accused was charged with criminal breach of trust. The deputy public prosecutor tendered a certificate issued by the public prosecutor to transfer the case to the High Court under Section 418A of the Criminal Procedure Code. Before the High Court, accused argued that Section 418A of the CPC violates Article 121(1) (before 1988) and thus unconstitutional. The majority of held that, the Section 418A of CPC contravene the Article 121(1) of the Federal Constitution as the power to transfer cases is falls under the jurisdiction of judicial power. The Section 418A of CPC had obviously giving power to a non-judicial authority (deputy public prosecutor) and by that it had violates Article 121(1) of the Federal Constitution. Even though the case had involved both legislative and executive power, the court still upheld the supreme Constitution. To further strengthen, in the case of City Council of George Town v Government of Penang, the subject argued that the laws made by the Government of Penang, which are the City Council of George Town Order 1966 and Municipal (Amendment) Enactment 1966 contravene to the Local Government Election Act 1960. Court held that, the laws were null and void as referred to Article 75 of the Federal Constitution which states that any state law that is inconsistent with Federal law shall be void up to its inconsistency and federal law shall prevail. On the other hand, Article 162 (6) deals with any pre-Merdeka law which is inconsistent with the federal Constitution shall be continued with the necessary modifications to render it consistent with the Federal Constitution.

Nelfi Amiera Mizan Multimedia University

Section 73 of the Malaysian Act 1963 then refers to pre-Malaysia laws in force on 16 September 1963 in a state which joins Malaysia on that date. This section acts as a saver from the automatic repeal all the per-Malaysia laws enacted by the states legislature. Despite of the Article 159 of the Federal Constitution which allows the constitution to be amended by the parliament, there are several modes in order to maintain its supremacy. Courts are given the power to review the legislative and executive acts. When a legislative or judiciary violates the constitution, the court may declare it ultra vires and void. In the Federal Constitution of Article 128, it gives the superior courts power to determine on the validity of Federal and State Law and invalidate them if it is found to be unconstitutional. In the case of Ah Thian v Government of Malaysia, subject was charged under Section 372 and 379 of Penal Code, for offences of robbery and armed robbery with attempt to cause death. However, he may be also be charged under Section 5 of the Firearms Act 1971 which carries the penalties of imprisonment for life and whipping not less than 6 strokes. The accused argued that the Firearms Act is ultra vires to the Article 8 of the Federal Constitution that provides equal protection of law. Courts had exercise the judicial review towards the case and held that The Firearms Act 1971contravened the constitution. Legislation may be invalidated firstly on the ground that it relates to a matter concerning the legislature which has no power to make law. As in the case of Mamat bin Daud v PP, the subject was charged under his section 298A of the Penal Code which commits acts that threaten the unity between Islamic religious by becoming bilal and khatib without an appointment letter from Majlis Agama Islam Terengganu. The subject alleged Parliament cannot approve section 298A of the Penal Code because the appointment is under the jurisdiction of the state government as stated in Article 73-74 and list II of the Ninth Schedule of the Constitution. Court held that the Section 298A of Penal Code is void and ultra vires Article 74 of Federal Constitution. Besides that, it also may be invalidated if it has not been enacted in accordance with the procedure prescribed in the constitution or it is inconsistent with any provision of the constitution or if it is a state law, it is inconsistent with federal law.

Nelfi Amiera Mizan Multimedia University