Effects of Article 4(1) of the Federal Constitution that the Constitution is the supreme law of the Federation.

1. The effect of Article 4(1) of the Federal Constitution that the Constitution is the supreme
law of the Federation.
By : Nur Hana Roshida Hairudin
By Federal Constitution being the supreme law of a country, it means, a country is
practicing Constitutional Supremacy system of government. The term ‘supremacy’ indicates
the highest authority, power or rank1 and it also means as being in an all-powerful position. On
the other hand, the term ‘constitution’ refers to the basic principles and laws of a nation, state,
or social group that determine the powers and duties of the government and guarantee certain
rights to the people in it2. It governs the people as well as the government and the
administration. “Constitutional Supremacy” is a system of government in which the law-
making freedom of parliamentary supremacy cedes to the requirements of a Constitution3. In
this system of Constitutional Supremacy, Parliamentary Supremacy does not exist and
Parliament does not have the freedom to make law as it please as it must abide to the
requirements of the constitution as the constitution is supreme. The authority and power of the
Parliament is gotten and acquired from the constitution. It could be deduced that each and every
law passed in the country must be in accordance with the Constitution and in the event that a
law is found to be not in accordance with the Constitution or in contrast with the Constitution,
the law can be challenged in court as unconstitutional and therefore, could be void, no force
and no effect4. Malaysia is a sovereign country practicing Constitutional Supremacy by virtue
of Article 4 of the Federal Constitution5.
Malaysia is a country with a written constitution and it represents the higher law in our
country. Written constitution represents a higher law not because it is written, but because these
rules are more difficult to amend. Our written constitution is the Federal Constitution and it is
the supreme law of the land by virtue of Article 4 of the Constitution, unlike in Britain where
the Parliament is Supreme and there is no law which it cannot make, repeal and amend6. Article
4(1) of the Federal Constitution mentions that “This Constitution is the supreme law of the
1 Supremacy.(2011) In Merriam-Webster.com http://www.merriam-webster.com/dictionary/supremacy,
2 Constitution. (2011) In Merriam-Webster.com http://www.merriam-webster.com/dictionary/constitution,
3 Constitutional Supremacy.(n.d.) In Duhaime.org, Legal Dictionary
http://www.duhaime.org/LegalDictionary/C/ConstitutionalSupremacy.aspx
4 Ferguson, G. & Johnston,D.M.(1998) Asia-Pacific Legal Development, Vancouver: UBC Press
5 Bari, A. A. (2009). Constitution ofMalaysia.Text and Commentary . Petaling Jaya: Pearson Malaysia Sdn
Bhd.
6 Suffian, M. (1972) An Introduction to the Constitution ofMalaysia, Kuala,Lumpur : Di-chetak di-Jabatan
Chetak Kerajaan

2. Federation and any law passed after Merdeka Day which is inconsistent with this Constitution
shall to the extent of the inconsistency be void”7. It means, the Constitution is supreme in our
country. Example of a case that shows doctrine of the Constitutional Supremacy is the case of
Marbury v. Madison. In this case which happened in 1803 the Supreme Court of United States
announced for the first time the principle that a court may declare an act of Congress void if it
is inconsistent with the Constitution.8
In Malaysia, as the Constitution is supreme, it defines the roles and functions of the
Yang di-Pertuan Agong saved in several Articles for example, Article 3(5), Article 40(1),
Article 41, Article 42(1), Article 153(1) of the Consitution9 and Parliament too derives its
power from the Federal Constitution. The Federal Constitution divides legislative power
between the federation government and individual states5. Not only that, in Malaysia, courts
are able to invalidate law passed by Parliament if its legislate law on matter which is outside
of its jurisdiction. State Law may also be invalidated by the courts on the ground such as it
legislate law which is not under its jurisdiction or it means, it is outside the jurisdiction of State
Legislative Assembly, or it is inconsistent with the Federal Constitution or it is inconsistent
with the Federal Law. By being supreme, it also makes Constitutional rules amendment needs
special majorities of vote as opposed to ordinary or simple majorities. It needs several
requirements and formal procedures to amend the Federal Constitution as referred to Article
159 of the constitution.
Parliament cannot pass a bill which contradicts to the Federal Constitution. Any law
cannot be made against the Federal Constitution as of it is so, the law will be unlawful, void
and unconstitutional. It needs special majorities of not less than two-thirds of votes on Second
and Third Readings from the total number of members the House to amend the Federal
Constitution as provided in Article 159 clause 3 of the Federal Constitution10. This shows the
rigidness of the Federal Constitution. Notwithstanding of the Article 159 of the Federal
Constitution which permits Parliament to amend the Federal Constitution, there are several
modes in order to maintain its supremacy. Courts are given the power to review the Law passed
by the Legislative and the Executive, under subsidiary legislation. If the Legislative or the
7 Article 4(1) , Federal Constitution (2013) , Petaling Jaya : International Law Book Services
8 Marbury v. Madison (2009) by A+E Networks in History.com http://www.history.com/topics/marbury-v-
madison
9 Pang, J. (July 24, 2013). How to avoid being seditious , from TheMalysian Bar :
http://www.malaysianbar.org.my/constitutional_law_committee/how_to_avoid_being_seditious.html
10 Article 159(3), Federal Constitution (2013) , Petaling Jaya : International Law Book Services

3. Executive is found violates the Constitution, the court may declare the law enacted as ultra
vires and void. By virtue of Article 128 of the Federal Constitution too, Federal Court are given
the authority and jurisdiction to determine the validity of the law promulagated by Parliament
and State Legislative Assembly. Federal Court can invalidate the law as it is unconstitutional
if it is found to be promulagated outside the jusridiction conferred on them in the Ninth
Schedule of the Constitution. This is another prove to show the supremacy of the
Constitution.11
There are several decided cases that prove the doctrine of supremacy of the Constitution
in Malaysia. First of all, a case can be referred to prove the supremacy of the Federal
Constitution which is the case of Ah Thian v Government of Malaysia12. In this case, the
applicant had been charged with committing armed gang robbery under sections 392 and 397
of the Penal Code, an offence punishable under section 5 of the Firearms (Increased Penalties)
Act, 1971 as amended. It was argued that the Firearms (Increased Penalties) (Amendment) Act,
1974 was ultra vires the Federal Constitution as it contravened Article 8(1) of the Constitution
and was therefore void. An adjournment was obtained to enable the applicant to obtain the
leave of a judge of the Federal Court to start proceedings for a declaration that the Act was
void for the reason stated. Courts had exercise the judicial review towards the case and held
that The Firearms Act 1971contravened the constitution. In this case, The Judge . Suffian
observed, “The doctrine of the supremacy of Parliament does not apply in Malaysia. Here, we
have a written constitution.”13.
On top of that, in the case of PP v Mohamed Ismail14, the court held that by virtue of
Article 7(1)15 of the Federal Constitution, the law should be prospective, instead of
retrospective. It stated that, “No person shall be punished for an act or omission which was not
punishable by law when it was done or made, and no person shall suffer greater punishme nt
for an offence than was prescribed by law at the time it was committed”. In this case the accused
was charged for an offence of trafficking in a dangerous drug, to wit, cannabis, in contravention
of section 39B(1) of the Dangerous Drugs Act, 1952. The accused was found guilty. On the
day when the accused was found guilty, section 39B(1) of the Dangerous Drugs Act, 1952 was
11 Article 128, Federal Constitution (2013) , Petaling Jaya : International Law Book Services
12 Ah Thian v Government Of Malaysia [1976] 2 MLJ 112
13 Ananth,S & Sarwar, M. I. The National Security Council Bill:A Colorable Exercise Of Power [2016] 2 MLJ
cxix
14 PP v Mohamed Ismail [1984] 2 MLJ 219
15 Article 7(1), Federal Constitution (2013) , Petaling Jaya : International Law Book Services

4. amended to provide for the mandatory sentence of death upon conviction in all cases of
trafficking in contravention of the section. Before the amendment, the Court had the option of
sentencing the accused to death or imprisonment for life. The Public Prosecuter invited the
court to apply the new sentence or punishment for the accused. However, the court rejected the
invitation as the accused committed the wrongful act before the law is amended which means,
the law by the time the offence was committed said that the punishement for drug trafficking
is either death senstence or life imprisonment. So, the decision made was in line with what has
been prescribed by the Constitution which shows the supremacy of the Constitution.
Dato’ Richard Malamjum, the Chief Judge of Sabah and Sarawak, in his dissenting
judgment for the case of Lina Joy stated that, “Legislative bodies, whether Parliament and State
Assemblies do not therefore have independent and sovereign legislative power merely on the
basis of the Legislative Lists in Schedule 9 of the Constitution. In fact such legislative powers
are derived from the Constitution itself. Hence, one is not wrong to say that the Legislative
Lists are subordinate to the fundamental liberties provisions enshrined in the Constitution”16
He made this statement by reffering to the case of PP v Mohamed Ismail. That means, the
Constitution is supreme as the power of Parliament and State Legislative Assembly is derived
from the Constitution.
By the Constitution being the supreme law of the land, the power of Parliament and
State Legislative Assembly in Malaysia is limited by the constitution and they cannot pass any
law as they please. Written law can be invalid on one of these grounds. First, written law can
be invalid in the case of both Federal and state written law, because it is inconsistent with the
constitution. Second is, when there is inconsistencies between Federal Law and State Law, the
Federal Law should prevail by virtue of Article 7517 of the Federal Constitution. Third, if the
federal government or State Legislative Assembly make a law which is on matter that is not
under its jurisdiction as prescribed in Article 7418 of the Federal Constitution. The jurisdiction
of the Parliament is stated in the First List or Federal List in Ninth Schedule of the Federal
Constitution while State Legislative jurisdiction prescribed in the Second List or State List of
16 Lina Joy Case: Dissenting Judgment of Justice Richard Malanjum , (May 30, 2007) from The Malaysian Bar:
http://www.malaysianbar.org.my/selected_judgements/lina_joy_case_dissenting_judgment_of_justice_richard_
malanjum.html
17 Article 75 , Federal Constitution (2013) , Petaling Jaya : International Law Book Services
18 Article 74 , Federal Constitution (2013) , Petaling Jaya : International Law Book Services

5. the Ninth Schedule. The Third List or Concurrent List is the list which mentions about the
matter where both Parliament and State Legislative have jurisdiction to make law on.
To further prove the effect of the supremacy of the Constitution, Tun Arifin Bin
Zakaria, Chief Justice of Malaysia at the Opening of the Legal Year 2016 also stated that, “Any
constitutional development in these freedoms must be consistent with the provisions of our
Federal Constitution. So long as laws are promulgated in accordance with, or intra vires the
Federal Constitution they should be adhered to. If indeed these laws encroach upon the
fundamental rights set out in the Constitution, then the requisite steps should be taken to
facilitate the adjudication of these laws by the judiciary. The members of the judiciary are
bound, by constitutional oath, to ensure that these laws are effectively measured against the
anchor of our Federal Constitution.”19
In guaranteeing and protecting the supremacy of the Constitution in our country, The
Judiciary plays the most essential and paramount role. It is the duty of The Judiciary to ensure
everyone in the country comply and conform with the rules and laws prescribed in the
Constitution as it is the highest law of the land. The Judiciary has been conferred with the
power and the function to interpret the Constitution and to decide if any law passed by
Parliament or any act of the Executive is constitutional and valid.20 YBhg Dato' Seri Gopal Sri
Ram, the former Judge of Federal Court in his presented paper at Part 2 of the 5th National
Congress on Integrity (NCOI), held at UCSI University, Kuala Lumpur on 16 September 2010
mentioned that “The judges stand not only as guardians of the Constitution but also as arbiters
in disputes between citizens and between citizen and the State. Judges are by their oath of
office bound to uphold, protect and defend the Constitution”21. It obviously shows the
supremacy and the sovereignty of the Constitution in our country.
Another case which prove the supremacy of the Constitution would be the case of City
Council of George Town & Anor v Government of The State of Penang & Anor22, the subject
19 Speech by YAA Tun Arifin Bin Zakaria,Chief Justice of Malaysia at the Opening of the Legal Year 2016 (8
Jan 2016),(January 11, 2016). From The Malaysian Bar
:http://www.malaysianbar.org.my/speeches/speech_by_yaa_tun_arifin_bin_zakaria_chief_justice_of_malaysia_
at_the_opening_of_the_legal_year_2015_8_jan_2016.html
20 My Constitution:Judgesand the judiciary. (2010, December 30). from The Malaysian Bar:
http://www.malaysianbar.org.my/constitutional_law_committee/my_constitution_judges_and_the_judiciary.htm
l
21 Preserving the Integrity of the Constitution (2010, September 30 ) from The Malaysian Bar:
http://www.malaysianbar.org.my/speeches/preserving_the_integrity_of_the_constitution.html
22 City Council of George Town & Anor v The Government of The State of Penang & Anor [1967] 1 MLJ 169.

6. argued that the law 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. It was held that a
State Law is invalidated to the extent of any inconsistencies therein with a Federal Law by
virtue of Article 75, even though the law is on the matter which is under the jurisdiction and
competency of State Legislature Assembly.
Next case which shows the supremacy of the Federal Constitution is, the case of Mamat
bin Daud & Ors. v Government of Malaysia23, where the application for leave under Article
4(4) arose as to whether Section 298A of the Penal Code and Criminal Procedure Code were
ultra vires the Federal Constitution being in excess of the legislative power of the Parliament.
The court held that, for the applicants to succeed, they must satisfy the court that the leave is
necessary under Article 4(4) and they have an arguable case in that the applicant is not
frivolous. Since the present application was not considered frivolous by the court, it allowed
the applicants to canvas their case before the full court on the constitutionality and validity of
the new section.
The subject was at first being charged under section 298A of the Penal Code for
submitting acts that likely and possibly will harm the harmony among Muslims by becoming
unauthorized bilal and khatib that is, without an appointment letter from Majlis Agama Islam
Terengganu. The subject then affirmed Parliament cannot favor section 298A of the Penal Code
in light of the fact that the appointment is under the ward of the state government as expressed
in Article 73 and 74 and List II of the Ninth Schedule of the Constitution. However, the
respondent fought that the Section was legitimate and valid on the basis that it is a law passed
by Parliament on the ground of Public Order, internal security and also criminal law based on
the Article 11 clause (5) and items (3) and (4) of List 1 of the Ninth Schedule of the Federal
Constitution. .24 Court however finally held that the Section 298A of Penal Code is void and
ultra vires Article 74 and Article 77 of Federal Constitution. The majority decision described
Section 298A as a colourable legislation in that it pretends to be a legislation on public order
but actually it is a law, on subject of religion . This section then was held null and void as
23 Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119
24Dr. Mokhtar, K. A. & Alias, S.A. Chapter24: The Role Of Judicial Review In Malaysia As A Tool Of Check
And Balance Under The Doctrine Of Seperation Of Powers https://gms101.files.wordpress.com/2013/02/the-
role-of-judicial-review-in-malaysia-as-a-tool-of-check-and-balance-under-the-doctrine-of-seperation-of-
powers.pdf

7. Article 74 of the Federal Constitution save religious matter for State Legislative Assembly, not
Parliament25.
In conclusion, In Malaysia, Federal Constitution is supreme instead of the Parliament
as the Constitution is the basic rules of governing the State by effect of Article 4(1) of the
Federal Constitution and any law must be in parallel with it or it will be illegitimate to the
extent of unconstitutionality and hence, is void and can be challenged in court. In Malaysia,
the Federal Constitution is the basic law which establishes and regulates the various forms of
governmental power. The powers of the legislative, executive and judicial authorities in the
country are circumscribed by the Federal Constitution26. The Federal Constitution is also the
highest law in our country as the concept of the supremacy of the constitution confers the
highest authority in a legal system on the constitution27 and there are several decided cases in
Malaysia which prove the supremacy of the Constitution. And not forget to mention, courts as
the insitution which function to interpret law, also play a very crucial and important role to
safeguard and uphold the supremacy of the Constitution.
25 Ibrahim. (n.d.) The Legislative Arrangements Under the Malaysian Federation
http://lib.iium.edu.my/mom2/cm/content/view/view.jsp?key=h1qU1sdXRxN6UQRclugN6uIsfrvRwLB8200801
08170605640
26 The Use and Misuse of Article 4(3) and 4(4) of the Federal Constitution [2015] 2 MLJ cliv
27 Limbach, J. (January, 2001). The Concept of the Supremacy of the Constitution. Modern Law Review, Vol 64
, No.1 pp:1-10.

8. References
Ah Thian v Government Of Malaysia [1976] 2 MLJ 112
Ananth, S & Sarwar, M. I. The National Security Council Bill:A Colorable Exercise Of
Power [2016] 2 MLJ cxix
Article 159(3), Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Article 4(1) , Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Article 7(1) Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Article 74 , Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Article 75 , Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Article 128, Federal Constitution (2013) , Petaling Jaya : International Law Book Services
Bari, A. A. (2009). Constitution of Malaysia. Text and Commentary . Petaling Jaya: Pearson
Malaysia Sdn Bhd.
City Council of George Town & Anor v The Government of The State of Penang & Anor
[1967] 1 MLJ 169.
Constitution. (2011) In Merriam-Webster.com
http://www.merriam-webster.com/dictionary/constitution
Constitutional Supremacy.(n.d.) In Duhaime.org, Legal Dictionary
http://www.duhaime.org/LegalDictionary/C/ConstitutionalSupremacy.aspx
Dr. Mokhtar, K. A. & Alias, S.A. Chapter 24: The Role Of Judicial Review In Malaysia As A
Tool Of Check And Balance Under The Doctrine Of Seperation Of Powers
https://gms101.files.wordpress.com/2013/02/the-role-of-judicial-review-in-malaysia-
as-a-tool-of-check-and-balance-under-the-doctrine-of-seperation-of-powers.pdf
Ferguson, G. & Johnston, D.M.(1998) Asia-Pacific Legal Development, Vancouver: UBC
Press

9. Ibrahim. (n.d.) The Legislative Arrangements Under the Malaysian Federation
http://lib.iium.edu.my/mom2/cm/content/view/view.jsp?key=h1qU1sdXRxN6UQRcl
ugN6uIsfrvRwLB820080108170605640
Limbach, J. (January, 2001). The Concept of the Supremacy of the Constitution. Modern Law
Review, Vol. 64, No.1 pp.1-10. Soft copy available at
http://www.cesruc.org/uploads/soft/130306/1-130306154F7.pdf
Lina Joy Case: Dissenting Judgment of Justice Richard Malanjum , (2007, May 30) from The
Malaysian Bar:
http://www.malaysianbar.org.my/selected_judgements/lina_joy_case_dissenting_judg
ment_of_justice_richard_malanjum.html
Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119
Marbury v. Madison (2009) by A+E Networks in History.com
http://www.history.com/topics/marbury-v-madison
My Constitution: Judges and the judiciary. (2010, December 30). from The Malaysian Bar:
http://www.malaysianbar.org.my/constitutional_law_committee/my_constitution_jud
ges_and_the_judiciary.html
Pang, J. (July 24, 2013). How to avoid being seditious , from The Malysian Bar :
http://www.malaysianbar.org.my/constitutional_law_committee/how_to_avoid_being
_seditious.html
PP V Mohamed Ismail [1984] 2 MLJ 219
Preserving the Integrity of the Constitution (2010, September 30 ) from The Malaysian Bar:
http://www.malaysianbar.org.my/speeches/preserving_the_integrity_of_the_constituti
on.html
Speech by YAA Tun Arifin Bin Zakaria, Chief Justice of Malaysia at the Opening of the Legal
Year 2016 (8 Jan 2016), (January 11, 2016). From The Malaysian Bar
:http://www.malaysianbar.org.my/speeches/speech_by_yaa_tun_arifin_bin_zakaria_c
hief_justice_of_malaysia_at_the_opening_of_the_legal_year_2015_8_jan_2016.html
Suffian, M. (1972) An Introduction to the Constitution of Malaysia, Kuala, Lumpur : Di-
chetak di-Jabatan Chetak Kerajaan

10. Supremacy. (2011) In Merriam-Webster.com
http://www.merriam-webster.com/dictionary/supremacy
The Use and Misuse of Article 4(3) and 4(4) of the Federal Constitution [2015] 2 MLJ cliv