A written constitution is considered as the highest law because it comprises rule that are difficult to amend. K.C Wheare said that a constitution has a legal authority because it was enacted by a body recognize as competent to give the force of law. The body either external legislative body, the people themselves or a constitutional assembly chose by the people.
Reason for Supremacy
A. Base on Logic
The Constitution supreme over the institution it creates. It is not just an ordinary law but functions to regulate institution and so it cannot be construed like an ordinary law.
In the case of Marbury v Madison it was stated that certainly all those who framed written constitution contemplate them as forming the fundamental and paramount law of the nation … that an act of the legislature repugnant to the constitution is void.
Therefore if a constitution can limit the power of institution it creates (Parliament) sure it must be superior force.
B. Pre Requisite of Law
Constitution is a product of body which has power to make supreme law from which ordinary law are made. Therefore it commands obedience because it is not ordinary law but supreme law.
C. Will of the people
It is the will of the people therefore it is binding upon every individual. This is way it command obligation.
Article 4 of Federal Constitution – Supremacy under Federal Constitution
i. This constitution is supreme law of Federation.
ii. Any law passed after merdeka which is inconsistent with this constitution shall to the extent of inconsistency be void.
This provision important for avoiding conflict between state and federal government. It also covers law passed before merdeka.
Please refer to the case of Assa Sign v MB of Johore, B Suvender Singh Kandar v Govt of FMS.
It clearly stated the principle of inconsistency between state and Federal Constitution.
Please refer to the case of DUN Kelantan & Anor v Nordin b Salleh.
Article 4 of Federal Constitution also provides principle of severability in other words a law may be good in parts and so the bad part can besevere living the good part and please refer to Hickling.
Method of Amending
Article 4 must read together with Article 159 of Federal Constitution.
Four (4) method of amending Federal Constitution :-
i. By simple majority – admit a state for federal, restrict freedom of movement, speech etc.
ii. By 2/3 majority in both Houses and consent from conference of Rulers i.e. Article 37(4) provision of sensitive issues, privileges position dignity.
iii. By 2/3 majority in both Houses and consent from Governor of Sabah and Sarawak i.e. matter relate to that states citizenship, resident.
iv. By 2/3 majority in both houses. Article 159(3) of Federal Constitution. Most amendment are through this way which is the ordinary way. Sensitive issues and most provision of constitution.
Although it can be amended but it is still supreme because not like ordinary amendment and judiciary can strike down if inconsistent with constitution.
*The theory is only in theory and academic significant because :-
i. The domination of BN since 1965 the secure 2/3 majority and so they can amend the constitution at will in accordance with the requirement. So less significant.
Please refer to the case of Loh Kooi Choon v Govt of Malaysia and the case of Phang Chin Hock @ Ah Tee v PP.
ii. The Federal Constitution itself provides means which could undermine it supremacy. Like Article 149 of Federal Constitution allow parliament to make law even it is inconsistent with Federal Constitution (DDA/ISA) and Article 150 of Federal Constitution during emergency allows government to amend constitution except on certain issues.
The Supremacy of Constitution Still Relevant
Reason for Supremacy
A. Base on Logic
The Constitution supreme over the institution it creates. It is not just an ordinary law but functions to regulate institution and so it cannot be construed like an ordinary law.
In the case of Marbury v Madison it was stated that certainly all those who framed written constitution contemplate them as forming the fundamental and paramount law of the nation … that an act of the legislature repugnant to the constitution is void.
Therefore if a constitution can limit the power of institution it creates (Parliament) sure it must be superior force.
B. Pre Requisite of Law
Constitution is a product of body which has power to make supreme law from which ordinary law are made. Therefore it commands obedience because it is not ordinary law but supreme law.
C. Will of the people
It is the will of the people therefore it is binding upon every individual. This is way it command obligation.
Article 4 of Federal Constitution – Supremacy under Federal Constitution
i. This constitution is supreme law of Federation.
ii. Any law passed after merdeka which is inconsistent with this constitution shall to the extent of inconsistency be void.
This provision important for avoiding conflict between state and federal government. It also covers law passed before merdeka.
Please refer to the case of Assa Sign v MB of Johore, B Suvender Singh Kandar v Govt of FMS.
It clearly stated the principle of inconsistency between state and Federal Constitution.
Please refer to the case of DUN Kelantan & Anor v Nordin b Salleh.
Article 4 of Federal Constitution also provides principle of severability in other words a law may be good in parts and so the bad part can besevere living the good part and please refer to Hickling.
Method of Amending
Article 4 must read together with Article 159 of Federal Constitution.
Four (4) method of amending Federal Constitution :-
i. By simple majority – admit a state for federal, restrict freedom of movement, speech etc.
ii. By 2/3 majority in both Houses and consent from conference of Rulers i.e. Article 37(4) provision of sensitive issues, privileges position dignity.
iii. By 2/3 majority in both Houses and consent from Governor of Sabah and Sarawak i.e. matter relate to that states citizenship, resident.
iv. By 2/3 majority in both houses. Article 159(3) of Federal Constitution. Most amendment are through this way which is the ordinary way. Sensitive issues and most provision of constitution.
Although it can be amended but it is still supreme because not like ordinary amendment and judiciary can strike down if inconsistent with constitution.
*The theory is only in theory and academic significant because :-
i. The domination of BN since 1965 the secure 2/3 majority and so they can amend the constitution at will in accordance with the requirement. So less significant.
Please refer to the case of Loh Kooi Choon v Govt of Malaysia and the case of Phang Chin Hock @ Ah Tee v PP.
ii. The Federal Constitution itself provides means which could undermine it supremacy. Like Article 149 of Federal Constitution allow parliament to make law even it is inconsistent with Federal Constitution (DDA/ISA) and Article 150 of Federal Constitution during emergency allows government to amend constitution except on certain issues.
The Supremacy of Constitution Still Relevant
This is because :-
i. Although ruling party is dominant but there is tendency it might break. At that time supremacy of constitution become reality. Political supremacy not permanent but Constitution supremacy is permanent.
ii. Once state of emergency revoke then constitution supremacy regain back.
iii. The government and opposition still observe the need of 2/3 majority so the impact is still real.
iv. Law and Statute can be declared unconstitutional. In many occasion the Judiciary had declared an act of parliament as unconstitutional – Please refer to the case of Mamat b. Daud v Govt. of Malaysia.
Conclusion
Federal Government like Malaysia needs Article 4 of Federal Constitution. Although constitution can be amended but the amendment is not ordinary amendment. So it is still supreme law of the country.
See further Article 4
