Constitutional Supremacy, Myth or Reality

Article 4(2)(a) - If a parliamentary enactment restricts right granted by Article 9(2) and is based on grounds not permitted by Article 9(2), the courts cannot interfere. Article 4(2)(b) – It is for Parliament to decide and the courts cannot intervene in the matters provided in Article 10(2) Official Secrets Act and Sedition Act – Are they necessary or expedient?

In the Constitution there are ouster clauses that seek to oust or exclude judicial review of execution discretion or legislative action. For example: a) Article 150(8) – The courts cannot challenge the validity of an Emergency Ordinance B) Second Schedule, Part III, Paragraph 2

Article 149 – Parliament can enact simple majority laws to combat subversion and these laws shall be valid even if they violate the guarantees of personal liberty, freedom of movement, freedom of speech, assembly and association and right to property. Laws like Internal Security Act (ISA) and Sedition Act are derived from Article 149.

Article 150 – Once the YDPA has made the proclamation of emergency, Parliament is authorised to suspend the entire Constitution except six topics of in Article 150(6A) There is very little parliamentary or judicial control over the executive or Parliament during a state of emergency.

The Constitution’s fundamental liberties are subject to extensive regulation by the legislature and the executive. The Police Act 1967, The Societies Act 1966, The Printing and Publications Act 1984 and The Official Secrets Act 1971. A harsh or oppressive law cannot be questioned in the courts.

Weakens the belief in constitutional supremacy. A supreme Constitution should have a measure of entrenchment.

A large number of governmental powers are not subject to any real control. Under a large number of laws, Ministers have absolute, unreviewable discretion: a) to order preventive detention under the ISA b) to grant or refuse printing permits under the Printing Presses & Publication Act c) to regulate student discipline under the Universities and University Colleges Act 1971

Judicial review of legislative and executive acts on constitutional grounds is not a significant feature of the Malaysian Constitution due to a number of factors: 1) The government uses Parliament’s special powers to combat subversion and emergency very adroitly in order to arm itself with laws like the ISA.

 2) Courts interpret subjective powers literally and show a general reluctance to read into them implied limits or to subject them to the explicit or implicit standards of the basic charter.  3) Judges steeped in the British tradition of parliamentary supremacy are reluctant to invalidate Acts of Parliament or even secondary legislation on the ground of constitutionality.

Article 3(1) – Islam is the religion of the federation. Article 3(4) - “nothing in this Article derogates from any other provision of this Constitution” Is Malaysia a secular or Islamic state? How must the conflict between constitutional supremacy in Article 4(1) and Islam as the religion of the Federation in Article 3(1) be resolved?

A number of judicial decisions indicate that the humanising provisions of Part II of the Constitution of fundamental liberties do not apply to private sector, to employeremployee, parent-child, and school-pupil relationships. The Constitution is alleged as a guideline for public law relationships only.