Constitutional Law - Supremacy of the Constitution

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

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.


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

Constitutional Law - Legislature - Parliament

Role, Structure and Function

Article 44 of Federal Constitution – Legislative authority of Federation vested on Parliament consist of :


ii. Dewan Negara

iii. Dewan Rakyat

Federal Level : Bicameral

Main Function :

i. Making of Nations law*

ii. Controlling of National Expenditure (Finance) (Article 68, 100, 102, 106, 107 of Federal Constitution)

iii. Ventilation of Grievances (public redress)

Yang di Pertuan Agong


i. Addressing either/both Houses opening

ii. The discretionary power to withholding the consent to a request for dissolution (own decision) Article 40(2) of Federal Constitution.

Act on advise from Government

iii. Appointment of senators – Article 45(1)(b)

iv. Summons and prorogue dissolution of Parliament (Article 55 of Federal Constitution)

v. Signifying assent to Bills (Article 66(4) of Federal Constitution)

Royal Assent

-Before 1984

YDPA has no role in legislation except

i. To assent the Bills passed by legislature

ii. Summon and prorogue the legislature

-After 1984

As a result of constitutional crisis 1983, in 1984 the Federal Constitution was amended

i. YDPA can assent within 30 days from bill presented to him or

ii. Return the Bill (not Money Bill) from where it originated with reason for objection.

The bill will be passed 2nd time and return back for assent and if not assented within 30 days it become law – Article 66 (4A) of Federal Constitution.

-After 1994

Power of YDPA reduced and procedure simplified. Upon sent for assent within 30 days he must assent if automatically becomes law – Article 66(4) & 66(4A) of Federal Constitution.

Officer of Parliament

i. President/Deputy – Article 56 of Federal Constitution

a. Choose from member of Dewan Negara.

b. During his absent his Deputy take over

ii. Speaker/Deputy – Article 57 of Federal Constitution

a. Non Parliament Member but Deputy can be from MP

b. In absent of Speaker, Deputy will take over.

Both have power to regulate and declare customs of House/spokesmen

Dewan Negara (Upper House)

a. Composition – Article 45 of Federal Constitution

i. President/Deputy President – Article 56 of Federal Constitution

ii. 2 from each state : 26

iii. 2 from KL : 2

iv. 1 from Labuan : 1

v. 40 appointed YDPA : 40

Total : 69

b. Qualification – Article 47 of Federal Constitution

i. Malaysian citizen residing in Federation

ii. 30 years above

iii. Not subject to disqualification

c. Term : 3 years / cant hold office more than 2 terms – Article 45(3) & (3A) of Federal Constitution.

d. Role/Functions:

i. Reid Commission : it has limited power because not elected by people

ii. Delaying power for example Money Bill (1 month) & Non Money Bills (1 year) to safeguard against hasty and to get public opinion.

iii. On amendment Bills and Constitutional amendment it has equal power with Dewan Rakyat (veto).

Dewan Rakyat (Lower House)

a. Composition : Article 46 of Federal Constitution - Speaker/Deputy Speaker (Article 57 of Federal Constitution) - 192 members

b. Qualification (Article 47 of Federal Constitution)

i. Malaysian citizen residing in Federation

ii. 21 years and above.

iii. Not Subject to disqualification

c. Terms : 5 years (Article 48(6))

d. Role and Function

i. It has more power than Dewan Negara because elected by people.

ii. Almost all Bills originates from Dewan Rakyat. Money Bill must originate from here (A.68(1))

Disqualification of Membership of Parliament
– Article 48 of Federal Constitution

i. Found / declare unsoundmind

ii. An undischarged bangcrupt

iii. Holds office of profit

iv. As a candidate or election agent fails to lodge any return of election expenses or guilty for election effences

v. Convicted & sentence not less 1 year for example RM2000/- and not receive pardon.

vi. Voluntarily acquired citizenship of any other country/allergiance to it.

vii. Absent without leave from House from every sitting for 6 month or fails to seat for first 3 month.

viii. Please refer to the case of Fan Yew Teng v Setiausaha Dewan Rakyat

Relationship Between Dewan Rakyat & Dewan Negara

i. Dewan Negara

a. Members are appointed

b. Role of revising chamber

c. Power to delay Bills

i. Money Bills (1 month)

ii. Non Money Bills (1 year)

To allow public express opinion check and balance safeguard from hasty. According to

Ben Stephen: so far only once delay.

d. Has equal power in amendment of Bills and Constitution amendment.

e. Bill can originate from Dewan Rakyat but seldom

ii. Dewan Rakyat

a. Members are elected by direct election

b. Higher position than Dewan Negara.

Money Bills only originate from here – Article 68(1) of Federal Constitution

* In the case of Kulasingam v Comm. of Land, Hashim Yeop Sani J said “There is nothing to prevent Parliament from delegating power to legislate on minor/administrative matter. In reality Parliament only general policy of law but detail law are made by officers/minister subsidiary legislation.

1990 (45/478) 1991 (33/481) 1992 (56/493)

Constitutional Law - Parliamentary Privileges

i. In order for MPs to able to perform their duty without harassment and Undue Influence from Government and public, MPs were given special Parliamentary Privileges/immunities so that no legal action can be taken against them.

ii. However Parliament also has its own rules to punish MPs who abuse their Parliamentary Privileges. Please refer to the case of Fan Yew Teng v Govt. of Malaysia. 

iii. In England, olden days Crown hold this jurisdiction but after King Henry VIII House of Commons hold this jurisdictions.

A. Article 63 of Federal Constitution – Parliamentary Priviledges

It states : 

1. The validity of any proceeding in either House of Parliament or any committee, shall not be question in any courts. Please refer to the case of (IGP v Lee Kim Hong) and the case of (Lim Woon Chong v PP). 

2. No person shall be liable to any proceedings in respect of anything said or any vote given by him when taking part in any proceedings of parliament. 

3. No person shall be liable to any proceedings in any courts in respect of anything published by or under the authority of the Parliament.

4. No person is liable for any proceeding, if he say anything about YDPA or Rulers during proceeding/committee except, if he say about their abolition of their Constitutional right of Head of State.

B. House of Parliament (Privileges and Powers) Ord. 1952

This Ordn also provides additional Parliamentary Privileges for MPs and please refer to Section 3 and Section 8 of this ordin..

Exception to this provision

1. Article 63(4)provides :-

i. a person shall be liable to proceeding of he or she had been charge with anoffence law passed by Parliament under Article 10(4) of Federal Constitution (matters relates to right status position of Malays, native of Sabah, Sarawak and Rulers.

ii. a person charge under Seditions Act 1948 amended by Emergency (essestial powers) Ord. No: 45. Please refer to the case of PP v Ooi Kee Soik and the case of PP v Mark Koding.

2. The Standing Orders of Parliament may also restrict the Parliamentary Priveleges.

*Remarks made outside Parliament are not covered under this Privileges. Please refer to the case of Rahman Talib v D.R. Sinivasagam and the case of PP v Lim Kit Siang.

*Article 72 of Federal Constitution provides similar provisions for Privileges of Legislative Assembly at State Level.

Breach of Privileges (Standing Order: 80(2) and 80(03))

1. If MPs breach the provileges such as contempt of house:

i. Deliberately lying the House

ii. Giving false evidence to committee

iii. Threatening a MP if he/she votes on a particular way.

2. A complaint files to the speaker. Speaker will enquire whether any prima facie case. If there is a prima facie, he will bring to open house and submit to Privileges committee for enquiry and investigation. Then the committee will report to the house if serious breach and the committee will investigate. The House will debate and vote. He may be compel from House or suspended for certain period.

Constitutional Law - Position of Head of State

Although in our Constitution System the function and role of YDPA/Rulers and Governors have the similar functions but the basis of legitimacy of YDPA and Rulers are not similar to Governors because they are hediatary and historic.

In the case of Tun Dato’ Haji Mustapha (No. 2) it was decided that the powers are similar is very much doubtful.

Reid Commissioner stated that the position of Rulers as Constitutional Monarchy in his state similar to YDPA at Federal level.

Reid Commissioner further stated that Governors position are as follows :-

i. Governors will be the constitutional Head of State and represent the unity of the state and should be above politics. 

ii. Governors should be independent from Federal like Rulers for equality. 

iii. Section 19A (1) 8th Schedule stated that after his appointment the Governor is responsible to the power of the state and not Federal Government or YDPA. 

iv. YDPA appoint with recommendation from Chief Minister. He can be terminated by YDPA after pursuant from Legislature of State Assembly and by majority of 2/3.

Position of Yang di Pertuan Agong

According to The Reid Commissioner :- 

i. YDPA is the symbol of unity of his country and focal point of allergiance particularly for the public service. 

ii. Although the YDPA is constitutional monarch (act on advise) but the comm. allow him to be given a measure of independent. 

iii. He will entitle to be kept informed on important public affair and to make his views known to Prime Minister. 

iv. Entitled to confor honours and commission under his name. 

v. He must be supported by a Civil List.

*In Negeri Sembilan the power to appoint is on the Undangs.

Appointment of Prime Minister

1. Article 43(2) of Federal Constitution stated that YDPA shall first appoint a member from House of Representative to be a Prime Minister, who is in his judgment likely to command the confidence of the majority of the members of that house. This is one of the truly prerogative power of the YDPA. 

2. So far at Federal Level the matter of appointment of PM had not been tested since the Barisan Nasional having strong majority.

State Level

The appointment of Menteri Besar or Chief Minister are similar but at state level there are several cases reported. 

1. 1986 – In Penang General Election – Umno 12 seats & Gerakan 9 seats. CM from Gerakan don’t want to give ways to UMNO and treathen to withdraw from BN. UMNO give ways.

2. In Perak please refer to Ghazali Jawi v Sultan 

3. Johor – Datuk Othman Saat v Sultan 

4. Tun Dato Haji Mustapha v YDPN Sabah & Dato’ Pairin Kitingan (Leading Case)

Constitutional Law - The Executive

The executive in our system comprises of three elements :-

i. The Head of State

ii. The Cabinet

iii. Civil Service



Every country has Head of State. In Malaysia the Head of State is the Constitutional Monarchy. Although the Executive authority of the Federation is vested on him, in many instances he has acted on advice by the Cabinet. However in certain area he may act on his discretion.

Head of State for Federal Government

Yang di Pertuan Agong (5 years rotation).

Head of State for State Government


Governors appointed by YDPA on advise from Chief Minister


According to De Smith in this system the Prime Minister is the effective Head of Government and not Head of State. The Prime Minister residing over a cabinet composing of ministers over which he has the power to appoint/control/removal. The ministers are collectively and individually responsible.

Function of Head of State

Three main kind of functions :-

i. Constitutional functions which is purely formal & residual. (appointment of Prime

Minister / dissolve House of Assembly)

ii. Carrying out a variety of Public engagement and ceremonial duties (Head of Armies)

iii. Symbolic and Representative function. This is the important function because they represent

the state and the nation (Article 36 of Federal Constitution) whereas the Yang di Pertuan Agong keeping public seal.

Article 39 of Federal Constitution said about Executive Power on YDPA.

Article 132 of Federal Constitution represent powers to Public service.

In the Case of Dato’ Menteri Othman Baginda v Dato Ombi Syed Alwi stated that dispute in rulling 2 main principle laid down on constitutional interpretation understanding the functions of Head of State :

i. Judicial Precedent plays less part

ii. Constitution must be construed broadly and more generosity then other Acts and in less rigidity.


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