1. Prepared by:
Md. Zubair Kasem Khan.Md. Zubair Kasem Khan.
LL.B(Hon’s)LL.B(Hon’s)
Master of Comparative LawsMaster of Comparative Laws
(MCL)(MCL)
International Islamic UniversityInternational Islamic University
Malaysia (IIUM).Malaysia (IIUM). 06/04/14 1

2. ж Definition of Constitution & Constitutional Supremacy
in different point of views.
ж Objectives & Purposes of Constitutional
Supremacy.
ж Historical Background of the Federal
Constitution of Malaysia.
ж Supremacy Clause in Federal Constitution
of Malaysia.
ж A deep look over the points………
Contents of the Presentation
06/04/14 2

3. To understand the essence of the word “Constitutional
Supremacy”, first I'd like to discuss a more fundamental i.e. meaning
of the word “Constitution”.
A constitution is a set of fundamental principles or established
precedents according to which a state or other organization is
governed ( New Oxford American Law Dictionary; pp-2051).
“…. a code of rules which aspire to regulate the allocation of
functions, powers and duties among the various agencies and officers
of government, and defines the relationship between these and the
public “( Vernon Bogdanor : Constitutions in Democratic Politics;
pp- 04).
Definitions of Constitution &
Constitutional Supremacy.
06/04/14 3

4. According to the sociological aspect, there is a big contractual
relationship between the state and his citizens which is called as SOCIAL
CONTRACT. If so, then in a democratic country, the constitution is treated
as the FUNDAMENTAL PART of that SOCIAL CONTRACT.
CONSTICONSTI
TUTIONTUTION
DeterminesDetermines
the Naturethe Nature ofof
the State.the State.
Ascertain the form ofAscertain the form of
Govt.Govt.
Distribute powersDistribute powers
among the 3 Organsamong the 3 Organs
of the Govt.of the Govt.
Regulate relationsRegulate relations
among theamong the
Governmental Organs.Governmental Organs.Determines theDetermines the
relationship betweenrelationship between
the Government andthe Government and
Confers FundamentalConfers Fundamental
Rights on theRights on the
Citizen.Citizen.
Provides procedureProvides procedure
to amend theto amend the
Provision of theProvision of the
Constitution.Constitution.
Determines the LimitsDetermines the Limits
of the Govt.of the Govt.
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5.  Constitutional supremacy is a doctrine
where by the constitution is supreme and the
government rule in accordance with the
constitution and at the same time the power of
government is limited by the constitution in order to
escape a type of tyrant of government, and the rule
of law is prevailing.
 A system of government in which the law-
making freedom of parliamentary supremacy cedes
to the requirements of a Constitution.
The Principles of Constitutional Supremacy first came to the debate by
the Theory of A V Dicey in 1885. 06/04/14 5

6. In Edgar v. Mite Corporation, 457 U.S.624(1982); the Supreme Court ruled:
A state statute is void to the extent that it actually conflicts with a valid Federal
statute
In effect, this means that, a State law will be found to violate the supremacy clause
when either of the following one condition(or both) exists:
- Compliance with both the Federal and State laws is impossible, or
- "...state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress(Federal Constitution)....."
[Dow Chemical Co. v. Exxon Corp., 139 F.3d 1470 (Fed Cir 1998)]
 It has superiority over the institutions it creates, and
takes precedence over all other laws.
Constitution Ordinary LawOrdinary LawX
Prevail Unconstitutional
NULL AND VOID.
06/04/14 6

7. The objectives and purposes of the presence of constitution
supremacy means and refers to that-
 Absolute sovereignty belongs to the constitution itself, dedicated powers
to the government through its people for being exercised within the
limit prescribed by it as a sacred trust.
 The State shall exercise powers and authority of the constitution
through the chosen representatives of the people.
 The principles of governance, democracy, freedom, equality, tolerance
and social justice, as enunciated by the constitution, shall be fully
observed.
Objectives & Purposes of
Constitutional Supremacy.
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8. Fundamental rights shall be protected
and guaranteed by the constitution.
The Supremacy Clause makes invalid
any law passed by a
State or local
government that is in conflict with
a federal law.
Constitution maintains a close
relationship among the state,
government and its organs.
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9.  The federal constitution of Malaysia evolved from the events of the
past.
 The very first written constitution of Malaysia was adopted in 1895
in the state of Johor by Sultan Abu Bakar.
 The federal constitution embodies the combination of British &
Indian concept of constitutions but did not follow the process like-
Constitutional Assembly.
 It has been developed based on previous constitutions drafted by
commission of Foreign Experts In Constitutional Law.
 To mitigate debates between State Sultans and the Federal Govt.
Article 71(4) has been imposed containing the “ESSENTIAL
PROVISIONS” set out in the Eighth Schedule for
harmonious integration.
06/04/14 9

10. Article -4, Clause-1 of the Federal
Constitution of Malaysia ensures the
supremacy of the constitution as-
“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.”
06/04/14 10
Supremacy Clause in Federal
Constitution of Malaysia.

11. Supreme Law – higher legal validity than any other rule in society
whether federal or state, enacted by Parliament or SLA.
In the salient case of Loh Kooi Choon Vs. Government of MalaysiaLoh Kooi Choon Vs. Government of Malaysia
[1977] 2 MLJ 187; Raja Azlan Shah FJ held that :-
“……the constitution is the supreme law of the land and
embodying 3 body concepts- Distribution of sovereign power,
Fundamental rights and Separation of power…..”
Federation – refers to the State of Malaysia including federal
government.
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12. Any Law – In the light of Article-160(2) of the Federal Constitution of
Malaysia, “Law”“Law” refers to written laws, common laws & recognized
customs in Malaysia in so far as it is in operation in the Federation or
any part thereof.
After Merdeka Day – On the basis of Article-160(2) after 31 August
1957. It also, however, covers law passed before Merdeka Day. This
doctrine has been proved and well established by the case of Assa SinghAssa Singh
Vs. Menteri Besar of JohoreVs. Menteri Besar of Johore (1969) 2 MLJ 30. The Federal Court held
that
“……although the application of the Restricted Residence
Enactment(RRE) had resulted in the violation of Singh's rights
under Articles 5 and 9 [1] of the Constitution, these violations were
Constitutional because Article 162 [2] permitted the grandfathering
06/04/14 12

13. To The Extent Of The Inconsistency – an act may not be void as
whole, only the inconsistent part may be void(Doctrine Of Severability).
In the case of Ah Thian Vs. Government of MalaysiaAh Thian Vs. Government of Malaysia [1976] 2 MLJ
112; Lord President Tun Suffian affirmed the supremacy of the
Constitution as:-
“……The doctrine of the supremacy of Parliament does not apply
in Malaysia. Here we have a written Constitution. The power of
Parliament and the state legislatures in Malaysia is limited by the
Constitution and they cannot make any law they please’……”
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14.  The adoption of a
written this written
Supreme Constitution,
as the charter compass,
the sail and anchor of a
nation, has a number of
distinct implications,
which are ⇒
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15. 06/04/14 15
Limited Parliament
The limitation of the Parliament of Malaysia has been confirmed by
Ah Thian v Government of Malaysia [1976] 2 MLJ 112 case.
According to this case- Lord President Tun Suffian affirmed the
supremacy of the Constitution as-
“……The doctrine of the supremacy of Parliament
does not apply in Malaysia. Here we have a written
Constitution. The power of Parliament and the state
legislatures in Malaysia is limited by the Constitution
and they cannot make any
law they please…..”

16.  Limits relating to subject
matter including:
 Jurisdictional error
 Restrict fundamental
rights
 Violating the federal-
state division of
competence.
 About how power must
be exercised.
 In performing legislative
function, parliament is
obliged to comply with
the procedural
requirement of Art 2(b),
38(4), 66, 68, 159 &
161E
06/04/14 16
Types of Limits on Parliament’s
power
Substantive Limits Procedural Limits

17.  Malaysia is a federation of states.
 There is a division of legislative executive, judicial and
financial powers between the federal and state assemblies.
 This division is entrenched in the scheme of the
Constitution.
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18.  The Federal Constitution (in Articles 5 to 13) contains a
chapter on FUNDAMENTAL LIBERTIES.
 Though Parliament is given extensive powers to regulate
these liberties on a wide range of grounds, it cannot be
denied that the constitutional provisions do create
‘obstacles… in the path of those who would lay rash
hands upon the ark of the Constitution’ (as per Lord
Birkenhead in Mc. Cawley v The King).
06/04/14 18

19.  Constitutional supremacy is maintained by giving to the
courts the power to review executive and legislative acts
on constitutional grounds.
 Hundreds of executive actions have been invalidated by
the courts for violation of the requirements of the
Constitution.
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20.  In Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at 113,
Suffian LP summed up the principles of legislative review.
06/04/14 20
If it violatesIf it violates
the federal-the federal-
state divisionstate division
of powers.of powers.
If it violatesIf it violates
the federal-the federal-
state divisionstate division
of powers.of powers.
If either FederalIf either Federal
or State writtenor State written
law islaw is
inconsistentinconsistent
with thewith the
Constitution.Constitution.
If either FederalIf either Federal
or State writtenor State written
law islaw is
inconsistentinconsistent
with thewith the
Constitution.Constitution.
If a StateIf a State
written law iswritten law is
inconsistentinconsistent
with awith a
Federal law.Federal law.
If a StateIf a State
written law iswritten law is
inconsistentinconsistent
with awith a
Federal law.Federal law.
The courts have power to declare a written law invalid onThe courts have power to declare a written law invalid on
one of the three grounds:one of the three grounds:

21. 06/04/14 21