SUPREMACY OF FEDERAL CONSTITUTION

SUPREMACY OF FEDERAL CONSTITUTION

2.1 The Law after Merdeka Day

The Federal Constitution is the supreme law of the land by virtue of Article 4(1) of the said Constitution. On that count, Article 4 goes on to state that any laws passed after Merdeka Day which are inconsistent with the Constitution shall to the extent of inconsistency, be void.

Any law inconsistent with the Federal Constitution may be challenged in court. As Suffian LP pointed out in Ah Thian v Goverment of Malaysia [1976] 2 MLJ 112 at page 113:

“The doctrine of supremacy of parliament does not apply in Malaysia. Here we have written constitution. The power of parliament and state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please”

As to the position of laws passed after Merdeka Day, it seems that these laws which are inconsistent with the Constitution shall also to the extent of inconsistency, be void by virtue of the case,

2.2 The Law before Merdeka Day

Article 4(1) refers only to the law made after Merdeka Day but regarding the laws before Merdeka day are dealt with in Article 162(6). Pre-merdeka laws shall be applied by a court or tribunal by such modifications as may be necessary to make accord to the Constitution.

In Surinder Singh Kanda v Government of Federation of Malaya [1962] MLJ 169. The appellant (Kanda) was dismissed on July 1958. He brought to the court for wrong dismissal and contended that the law before Merdeka day was inconsistent with the Federal Constitution. Under the pre-merdeka law Comissioner of police has the right to appoint and dismiss, but after merdeka Federal Constitution provides under article 140(1) and 144 (1) that  the powers are now vested on Police Service Comission. Privy Council held that the dismissal was void as the Constitution is prevail when the powers to appoint and dismiss no more vested on Comissioner of Police.

 CONSTITUTIONAL MONARCHY AND ISLAM

Article 32(1) read together with Article 40 establishes a constitutional monarchy; the Supreme Head of the Federation taking the title of “Yang di-Pertuan Agong”.

Chapter (4) of the Part IV establishes a system of Parliamentary democracy. Various articles establish a Westminster type of parliamentary government with no separation of the legislative and executive branches. The judiciary remains separate and independent.

The Constitution provides for a constitutional monarchy. The Malaysian monarch is called the “Yang di-Pertuan Agong”, who is “the Supreme Head of the Federation” and takes precedence over all persons including the Rulers. He is elected by the conference of rulers, by rotation, from the rulers of the nine Malay States.

The word “Rulers” is the generic name that has long been used to refer to the hereditary Heads of the State. 

Each of the nine Malay States has a Ruler who succeeds to the throne of the state in accordance with the State Constitution bearing the title “Sultan”. In Perlis, the Ruler is referred to as “Raja”. In Negeri Sembilan, he is also known as “Yang Dipertuan Besar”. A deputy King is known as Timbalan Yang di-Pertuan Agong.

His Majesty the Yang di-Pertuan Agong can no longer act as the Ruler of his state and is represented a Regent. Penang, Malacca, Sabah and Sarawak have no hereditary Ruler and as such, the King takes on the Headship of Islam in these states.

A Regent or a council of Regency for the state of the Yang di-Pertuan Agong is appointed during his term as the King. As Head of the Federation, his jurisdiction naturally extends to the whole federation.

Article 3 provides for Islam to be the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation. The Constitution also covers and protests fundamental liberties to all people living in the Federation. Besides, the special privileges of indigenous people are preserved in the Constitution. The Constitution also emphasizes citizenship in the Articles.