Constitutional Law I

Lecture

The Rule of Law

The rule of law meant basically three things; no punishment may be inflicted other than for the
breach of the law; irrespective of rank and status all are equal before the law; and rights and
freedoms are best protected under

The principle of the ‘rule of law’ can be traced back to the writings of philosophers in ancient
Rome and Greece. For example, the maxim, ‘the rule of law is preferable to that of any
individual’, has been attributed to Greek philosopher Aristotle. He argued that government by
laws was superior to government by men.

One of the basic principles of the English Constitution is the Rule of Law. This doctrine is accepted
in the Constitution of U.S.A. and also the Constitution of Malaysia, India and many
countries. Sir Edward Coke, the Chief Justice in James 1's reign was the originator of this
concept. In a battle against the King he maintained successfully that the King should be
under God and Law, and he established the supremacy of the Law against the executive.
Dicey developed this theory of Coke in his classic book 'The Law and the Constitution'
published in the year 1885.

 The idea of the ‘rule of law’ was not invented by Dicey, but popularized it in the late 19 th
century. Where he claimed that the rule of law meant three things under the British
Constitution i.e. no punishment may be inflicted other than for the breach of the law;
irrespective of rank and status all are equal before the law; and rights and freedoms are
best protected under Common Law rather than a formal Bill of Rights. and both
constitutional and actual guarantees of basic human rights.

The ‘rule of law’ embodies the basic principles of equal treatment of all people before the law,
fairness, and both constitutional and actual guarantees of basic human rights.
The ‘rule of law’ implies the supremacy of law and that all laws must conform to certain
minimum standards for instance protection of civil liberties. Thus, the ‘rule of law’ requires laws
to respect certain basic inalienable rights. The doctrine means something more than ‘government
according to the terms of the constitution’.

Development of the concept of ‘Rule of law’ in UK

The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The
modern concept of Rule of law owes much to the great battles between the English kings and
their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the
war between the British Empire and its American Colonies.

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The Great Charter: Magna Carta

On June 15, 1215 in the meadows of Runnymede, King John and his rebellious barons agreed to
the great charter known as Magna Carta. The great charter was the first significant written
instrument limiting the power of the king and confining him to what the barons regarded as good
governance. These promises were a bargain between the king and the feudal lords dictated by the
force of arms.

Winston Churchill, in his History of English Speaking peoples, writes about the glorious legend
of the charter of an Englishman’s liberties. “The original Articles of the barons on which Magna
Carta is bases exist today in the British Museum. In the next hundred years it was reissued 38
times, at first with a few substantial alterations but retaining its original Characteristics”.

He concludes, “Now for the first time the king himself is bound by the law. The root principle
was destined to survive across the generations and raise paramount long after the feudal
background of 1215 had faded in the past. The charter became in the process of time an enduring
witness that the power of the crown was not absolute…. And when in subsequent ages the state
swollen with its own authority, has attempted to ride roughshod over the rights and liberties of
the subject it is to this doctrine that appeal has again and again been made, and never, as yet,
without success…..There is a law which is above the king and which even he must not break.
This reaffirmation of a supreme law and its expression in a general charter is a great work of
Magna Carta; and this alone justifies the respect in which men have held it”.

James the first and chief Justice Coke

Under the leadership of Chief Justice Coke the Courts had started interfering in the matter of
prerogative powers, seizures and detentions and were issuing writs to review the decisions of
local feudal and ecclesiastical courts. On this historic day, King James claimed that, “Since the
Judges was but his delegates he could take any case he chose, remove it from the jurisdiction of
the courts and decide it in his royal person.” To this chief Justice coke answered, “In the
presence and with the clear consent of all the judges……that the king in his own cannot
adjudicate any casebut that it ought to be determined and adjudicated in some court of justice,
According to law and customs of England. To this king James replied, “That he thought that the
law was founded upon reason, and that he and others had reason as well as the judges.” Then he
followed the stirring and courageous reply of Coke which sends a thrill of pride in every lawyer
and every judge even after so many years. He said, “ it was god who had endowed His Majesty
with excellence science and great endowments of nature; but His majesty was not learned in the
laws of his realm of England and causes which concern the life or inheritance or goods or
fortunes of his subjects are not to be decided by natural reason but by the artificial reason and
judgment of law, which law is an act which requires long study and experience, before that a
man can attain to the cognizance of it that the law was the golden metwand and measure to try

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the causes of the subjects”. James was greatly offended and said, “This means that I shall be
under the law which is treason to affirm”. To which the Coke replied, “that Bracton said that the
king should not be under man but should be under God and law (Quod rex et lege).

In 1616 James I sent a Royal Order issued by Sir Francis Bacon as Attorney General to coke and
his fellow judged not to proceed with the hearing of an action because the king’s prerogative was
in question. The judges demurred, but when summoned by the king the other judges humbled
themselves and promised to do as the king desired but chief Justice Coke alone stood firm and
replied, “that when the case should be he would do that should be fit for a judge to do.” As a
result Coke was dismissed from his position as Chief Justice of the King’s Bench. It was only
after the Glorious Revolution and Act of Settlement (1701) that parliamentary powers became
ascendant and the independence of the judges’ tenure was firmly secured.

Dicey’s Concept of Rule of Law

Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France.
In France, Dicey observed that the government officials exercised wide discretionary powers and
if there was any dispute between a government official and private individual it was tried not by
an ordinary court but by a special administrative court. The law applicable in that case was not
ordinary law but a special law developed by the administrative court. From this Dicey concluded
that this system spelt the negation of the concept of rule of law which is secret of Englishman’s
liberty. Therefore, dicey concluded that there was no administrative law in England.

In England, the doctrine of rule of law was applied in concrete cases. If a man is wrongfully
arrested by the police, he can file a suit for damages against them as if the police were private
individuals. In Wilkes v. wood it was held that an action for damages for trespass was
maintainable even if the action complained of was taken in pursuance of the order of the
minister. In the leading case of Entick v. Carrington a publisher’s house was ransacked by the
king’s messengers sent by the secretary of state. In an action for trespass, 300 were awarded to
the publisher as damages. In the same matter, if a man’s land is compulsorily acquired under a
illegal order, he can bring an action for trespass against any person who tries to disturb his
possession or attempts to execute the said order.

Meaning: Dicey, Rule of Law

According to Dicey, the rule of law is one of the fundamental principles of the English
Legal System. In his book , he attributed the following three meanings to the said doctrine:
(i) Supremacy of law;
(ii) Equality before law; and
(iii) Predominance of legal spirit.

(i)Supremacy of law
Explaining the first principle, Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to influence of arbitrary power or wide discretionary

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power. It excludes die existence of arbitrariness, of prerogative or even wide discretionary
authority on the part of the Government. According to him the Englishmen were ruled by the
law and law alone. A man may be punished for a breach of law, but can be punished for
nothing else.! In his words, '"'Wherever there is discretion, there is room for arbitrariness and
that in a republic no less than under a monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on die part of its subjects.” As Wade says
the rule of law requires that the Government should be subject to the law, rather than the law
subject to the Government.
In other words, according to this doctrine, no man can be arrested, punished or be lawfully
made to suffer in body or goods except by due process of law and for a breach of law
established in the ordinary legal manner before the ordinary courts of the land. Dicey
described this principle as 'the central and most characteristic feature' of Common Law.

(ii) Equality before law

Explaining the second principle of the rule of law, Dicey states I there must be equality before
the law or the equal subjection of all classes to the ordinary law of the land administered by the
ordinary law courts. According to him, in England, all persons were subject to one and same
law, and there were no extraordinary tribunals or special courts for officers of the Government
and other authorities. He criticized the French legal system of droit administrative in which
there were separate administrative tribunals for deciding cases between the officials of the state
and the citizens. According to him, exemption of the civil servants from the jurisdiction of the
ordinary courts of law and providing them with the special tribunals was the negation of equality.
According to Dicey4, any encroachment on the jurisdiction of courts and any restrictions on the
subject's unimpeded access to them are bound to jeopardize his rights. In the words of Lord
Denning5: English law does not allow a public officer to shelter behind droit administratif.

(iii) Predominance of legal spirit

Explaining the third principle, Dicey states that in many countries rights such as right to personal
liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written
Constitution; in a England, it is not so. Those rights are the result of judicial decisions concrete
cases which have actually arisen between the parties. The constitution is not the source but the
consequence of the rights of the individuals. Thus, Dicey emphasized the role of the courts of
law as guarantors of liberty and suggested that the rights would be secured more adequately if
they were enforceable in the courts of law than by mere declaration of those rights in a
document, as in the latter case, they can be ignored, curtailed or trampled upon.
According to him, mere incorporation or inclusion of certain rights the written constitution is of
little value in the absence of effective remedies of protection and enforcement.

Application of doctrine

In England, the doctrine of the rule of law was applied in concrete cases. According to Wade, if a
man is wrongfully arrested by the police, he can file a suit for damages against them as if the
police were private individuals. In Wilkes v. Woods, it was held that an action for damages for
trespass was maintainable even if the action complained of was taken ill pursuance of the order

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of the Minister. In the famous case of Entick v Carrington, a publisher's house and papers were
ransacked by the King messengers sent by the Secretary of State. In an action for trespass,
damages to the tune of £ 300 were awarded to the publisher.

Comments

Dicey's thesis had its own advantages and merits. The doctrine of Rule of law proved to be an
effective instrument in confining the administrative authorities within their limits. It served as a
kind of touchstone to judge and test administrative actions.

The doctrine of the rule of law expounded by Dicey was never fully accepted in England even in
his days. Wade rightly says if he had chosen to examine the scope of administrative law in
England, he would have to admit that even in 1885 there existed 'a list of statutes which
permitted the exercise of discretionary power which could not be called in question by courts'
and the crown enjoyed the immunity under the maxim 'The King can do no wrong The
shortcoming of Dicey's thesis was that he not only excluded arbitrary powers but also insisted
that the administrative authority should not be given wide discretionary powers, as according to
'wherever there is discretion, there is room for arbitrariness'. Dicey failed to distinguish arbitrary
power from discretionary power. Though arbitrary power is inconsistent with the concept of
rule of law, discretionary power is not, if it is properly exercised. The welfare State cannot work
properly without exercising discretionary power.

Modern concept of Rule of Law

Dicey's concept of rule of law was not accepted fully even in 1885 when he formulated it, for
even that period, administrative law and administrative authorities were existent. Today, Dicey's
theory of rule of law cannot be accepted in its totality. Davis gives seven principal meanings of
the term 'Rule of Law':- (l) Law and order; (2) Fixed rules; (3) Elimination of discretion; (4)
Due process of law or fairness; (5) Natural law or observance of the principles natural justice;
(6) Preference for judges and ordinary courts of law executive authorities and administrative
tribunals; and (7) Judicial review of administrative actions.

Criticism
Dicey’s first principle (supremacy of regular law as opposed to the influence of arbitrary power)
has been seriously challenged, due to the proposition that the rule of law excludes even wide
discretionary authority by the government. The modern government depends on many
discretionary powers granted to the executive by the large numbers of statutes annually passed
by parliament or other legislature. It seems that Dicey’s formulation may be interpreted to
disapprove of the thousands of regulations in our society made through the discretion of
delegated authorities.

This first principle also contradicts the fact that, as a matter of necessary efficiency, many
present day statutes allow police the power to detain people for a short period of time due only to
a reasonable suspicion. Ivor Jennings has also pointed out that arbitrary power may be increased
in national emergencies, such as war. This was reflected in the drastic powers given to the
English government by the Defense of the Realm Act in 1914 Dicey’s second meaning stresses

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the equal subjection of all persons to the ordinary law. What a constitutional guarantee of
equality before law may achieve is to enable legislation to be invalidated which discriminates
between citizens on grounds that are considered irrelevant, unacceptable or offensive. These
views of Dicey long impeded the proper understanding of administrative law, but today the need
for such law in a democracy cannot be denied. Administrative courts as they may exist protect
the individual against unlawful acts by public bodies.

Dicey’s second principle (equality before the ordinary law of the land) may also be challenged in
today’s law. Although it is true that public officials who commit crimes or torts are liable before
the ordinary courts (except for circumstances of non-justiciability, such as in The Church of
Scientology v Woodward, it is not true that those public officials and private citizens have the
same rights, and are thus equal. “A tax investigator, for example, has powers which the taxpayer
does not possess”. Furthermore, members of the police force may be able to exercise
considerably more lawful power over members of society than the average citizen lawfully
could.

The principle of equality before the law has raised significant problems for the rule of law. It
would be unjust if the law failed to account for social difference and disadvantage, and simply
presumed that everyone was equal and should be treated equally. This led Hayek to attempt to
adapt the rule of law in a manner that Joseph Raz thought created “exaggerated expectations” for
it . Hayek stated: “The requirement that the rules of true law be general does not mean that
sometimes special rules may not apply to different classes of people if they refer to properties
that only some people possess... Such distinctions will not be arbitrary; will not subject one
group to the will of others, if they are equally recognized as justified by those inside and those
outside the group”. This statement lead Raz to allege it was a guarantee of freedom and a
“slippery slope leading to the identification of the rule of law with the rule of good law”.
Dicey’s third meaning of the rule of law expressed a strong preference for the principles of
common law declared by the judges as the basis of the citizens’ rights and liberties. Dicey had in
mind the fundamental political freedoms- freedom of the person, freedom of speech, freedom of
association. Today it is difficult to share Dicey’s faith in common law as the primary legal means
of protecting the citizen’s liberties against the state. First, fundamental liberties at common law
may be eroded by Parliament and thus acquire a residual character.

Secondly, the common law does not assure the citizen’s economic and social well-being. Third,
while it remains essential that legal remedies are effective, there is value in a declaration of the
individual’s basic rights and in creating judicial procedures for protecting those rights. Diceyan
theory may be further criticised due to his perception of the “sovereignty of Parliament and the
supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that Australian
parliaments may be supreme, but they are not sovereign. “The rule of law affirms parliament’s
supremacy while at the same time denying it sovereignty over the Constitution.” Criticisms of
Diceyan theory have lead to different formulations of the rule of law; but Dicey’s formulation
still reflects some of the fundamental principles of the rule of law. In following his formulation
some commentators prefer the narrow term ‘government under law’ rather than ‘rule of law’.
However some commentators prefer to formulate the rule of law, not as an actual rule of law in
itself, but as a “statement of constitutional and juridical principle, a juristic reserve, an idea of a
profound legality superior, and possibly anterior, to positive law. It is not easy to define with

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precision, because in part it manifests itself more as an absence than a presence, rather like those
other great negatives, peace and freedom”.

F.A. Hayek has provided a clear and concise formulation of the rule of law:
“Stripped of all technicalities this means that government in all its actions is bound by rules fixed
and announced beforehand - rules which make it possible to foresee with fair certainty how the
authority will use its coercive powers in given circumstances, and to plan one’s individual affairs
on the basis of this knowledge.”

Broader views on the rule of law, such as the judgment of Brennan, Deane, and Dawson JJ in
Chu Kheng Lim v Minister for Immigration , will also recognize the inherent relationship
between ‘government under law’ and the separation of powers doctrine. If Dicey’s formulation
were a strict standard, then it would be quite easy to point out a number of circumstances in
which that standard has been departed from by states. It can be noted that Raz has not limited
himself to Diceyan theory in his criticisms of the rule of law. Raz argues that the rule of law “is
not to be confused with democracy, justice, equality (before the law or otherwise), human rights
of any kind or respect for persons or for the dignity of man”

Rather than hopelessly trying to make excuses as to why the rule of law has not always prevailed
in English law, Raz stated: “Since the rule of law is just one of the virtues the law should
possess, it is to be expected that it possesses no more than prima facie force. It has always to be
balanced against competing claims of other values”. Raz considers the rule of law to be a
negative value that is “merely designed to minimise the harm to freedom and dignity which the
law may cause in its pursuit of its goals however laudable these may be”. The rule of law has
been limited in its fulfillment of constitutionalist promises. However, in assessing whether the
rule of law has fulfilled its constitutionalist promises it must be repeated: “The rule of law
sustains much more than constitutionalism”. Constitutionalist promises involve the limiting and
supporting of state power. Before criticizing the effect of the rule of law it must be noted that
values of equality and human rights, as discussed by Dicey and Hayek, are not always directly
constitutionalist promises. However this is not to say that constitutionalist promises, such as the
restriction of arbitrary power, have not indirectly assisted these values.

The rule of law’s intended protection against the use of arbitrary power, and the principle that
law must be supreme, is, however, a constitutionalist promise. Furthermore, it is fair to say that
the principle that government officials should be equally subject to the law is a constitutionalist
promise, in that it fulfils a purpose of restraining state power.

The concept of “rule of law” per se says nothing of the “justness” of the laws themselves, but
simply how the legal system upholds the law. As a consequence of this, a very undemocratic
nation or one without respect for human rights can exist with or without a “rule of law”, a
situation which many argue is applicable to several modern dictatorships. However, the “rule of
law” is considered a prerequisite for democracy, and as such, has served as a common basis for
human rights discourse between countries such as the People’s Republic of China and the West.

The rule of law is an ancient ideal first posited by Aristotle as a system of rules inherent in the
natural order. It continues to be important as a normative ideal, even as legal scholars struggle to

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define it. The concept of impartial rule of law is found in the Chinese political philosophy of
Legalism, but the totalitarian nature of the regime that this produced had a profound effect on
Chinese political thought which at least rhetorically emphasized personal moral relations over
impersonal legal ones. Although Chinese emperors were not subject to law, in practice they
found it necessary to act according to regular procedures for reasons of statecraft. In the Anglo-
American legal tradition rule of law has been seen as a guard against despotism and as enforcing
limitations on the power of the government. In the People’s Republic of China the discourse
around rule of law centers on the notion that laws ultimately enhance the power of the state and
the nation, which is why the Chinese government adopts the principle of rule by law rather than
rule of law.

There has been numerous criticism of the concept of rule of law. One is that by focusing on the
procedures used to create the law, one loses sight of the content and consequences of those laws.
Another, which has been advised by critical theorists, is that the concept of rule of law is merely
a method by which the ruling classes can justify their rule, because they are in charge of
determining which laws get passed or not (in other words, they argue that the rule of law is in
reality the rule of those people who have the power to make or change laws). Yet another
criticism focuses on the emphasis that rule of law places on the prevention of arbitrary action,
while giving legitimacy to all actions performed “according to the law”, even when most people
would oppose those actions. As evidence to support these objections, the following example is
often given: if an authoritarian government commences legal action against a political dissident,
that action may not be arbitrary or made by personal whim, and it may be made exactly
according to the law, but it may still be objectionable.

Rule of Law under Constitution of India

Dicey's rule of law has been adopted and incorporated in the Constitution of India. The preamble
itself enunciates the ideals of justice, liberty and equality. In Chapter III of the Constitution these
concepts are enshrined as fundamental rights and are made enforceable. The Constitution is
supreme and all the three organs of the Government, legislature, executive and judiciary are
subordinate to and have to act' accordance with it. The principle of judicial review is embodied
in Constitution and the subjects can approach High Courts and the Supreme Court for the
enforcement of fundamental rights guaranteed under Constitution. If the executive or the
Government abuses the power vested in it or if the action is mala fide, the same can be quashed
by the ordinary courts of law. All rules, regulations, ordinances, bye-laws, notification, customs
and usages are 'laws' within the meaning of Article 13 of Constitution and if they are inconsistent
with or contrary to any of provisions thereof, they can be declared as ultra vires by the Supreme
Court and by High Courts. The President is required to take an oath preserve, protect and defend
the Constitution. No person shall be deprived of his life or personal liberty except according to
procedure established by law.

THE MALAYSIAN CONSTITUTION AND THE RULE OF LAW

In a Malaysian context, the doctrine could be understood by way of making reference to Art 4 of
the Constitution. Why? Because the purpose of Art 4 is obviously to establish the Constitution as
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the basis of the ‘rule of law’. (Take note of Art 3(1) of the Commission’s Draft Constitution,
which never came into existence and its place came Art 4(1)).
• It must be noted that Art 4 which is viewed as the basis of the doctrine of the ‘rule of law’
under the Malaysian Constitution could be said to be diluted by two features in the
Constitution. The two features are: (a) amending power conferred on Parliament in
respect of the Constitution under Art 159 & (b) the law-making power confided in the
executive (on whose advice the YDPA is bound to act) under Art 150.
• All in all, the ‘rule of law’ is part and parcel of the Malaysian Constitution irrespective of
the two features mentioned above. See the case of Loh Kooi Choon v. Government of
Malaysia [1977] 2 MLJ 187- where federal court Raja Azlan Shah (now Sultan of Perak)
observed: “The Constitution is not a mere collection of pious platitudes. It is the supreme
law of the land embodying 3 basic concepts: fundamental rights, federal division of
powers and separation among the executive, legislature and the judiciary…expressed in
modern terms that we are government by laws, not men”. However, take note of the final
decision of the Federal Court.
• It requires that no one be punished except for a conduct which represents a clear breach
of law. All laws should be prospective, open and clear. (See the case of PP v Mohamed
Ismail [1984] 2 MLJ 219- where the defendant was charged with drug trafficking which
was punishable with life imprisonment or death under sec 39B(1) of the Dangerous
Drugs Act 1983. While his trial was pending, the law was amended to provide for a
mandatory death penalty. At the close of the trial, the public prosecutor invited the court
to impose the enhanced penalty. In refusing the request, the judge held that the
amendment could not apply to the defendant’s case as it was enacted after the offence
was committed)
• Decisions made by those in authority must be made in accordance with law (supremacy
of law-see Art 4(1) of the Federal Constitution. All government actions must be
authorised by law
 Government of the day must also respect the law. (See the case of Lee Gee Lam v
Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265-
where the order of detention stated a number of grounds on which the detainee was
apprehended with the word ‘or’ and not ‘and’ in between. The court held that the
statement of grounds in the alternative denied the detainee his constitutional right to
know precisely the reason why he was being arrested)
• All government and public officials are accountable to law i.e., the government itself is
subject to law. The government and its officials should not have any special exemptions
or protections from the law. This could best be understood through the operation of
judicial review. (See the case of Chai Choon Hon v Ketua Polis, Daerah Kampar [1986]
2 MLJ 203- in which a condition, attached to a police permit to hold a DAP dinner, that
there should be only seven speakers, was struck down because the permit already
imposed a time limit, which rendered the condition unnecessary

 Laws need to advocate for equality irrespective of rank and status in a given society.
Laws must not be gender bias etc. (See Article 8(1) and (2) of the Federal Constitution)
• Courts have an important role to fulfil i.e., that when they construe the words of the
statute, they should restrict the meaning of that statute as far as possible so that it does not
unduly infringe upon citizens rights. Hence, the independence of the judiciary must be

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guaranteed and courts must be accessible. Court must be viewed as the custodian of
rights & as well as upholding the supremacy of the Constitution.
Note: Though the rule of law is viewed as an important concept or doctrine, there are
also some criticisms regarding this doctrine e.g. the supremacy of the constitution is a fallacy
especially in the context of the ouster clauses in the constitution itself; the government must
possess clearly defined powers to authorise its actions seems not to be true even though we have
a written constitution; the notion of equality before the law is surrounded by a lot of grey areas;
etc.
Supremacy of the Federal Constitution:
• A written constitution represents a higher law, not so much because it is written, but
because these rules are far more difficult to amend. Constitutional rules are usually
amendable by special majorities as opposed to ordinary or simple majorities. (See Art
159(3) of the Federal Constitution which provides that a Bill making any amendment to
the Constitution shall not be passed in either House of Parliament unless it has been
supported on a Second or Third Readings by the votes of not less than two-thirds of the
total number of members of that House.
• Hence, the term ‘supremacy’ means the highest in authority or rank and this may even
mean being in all-powerful position. (See the American Constitution and the decision of
the SC in the case of Marbury v Madison)
• The Federal Constitution of Malaysia purports to be the supreme law of the Federation.
This much is claimed by Art 4(1) which provides: 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.
Importance of the supremacy of the Federal Constitution:
• By virtue of Art 4(1), in Malaysia only the Constitution is supreme. English
constitutional lawyers speak of the supremacy of Parliament, which Dicey, a famous
professor of law, considered the dominant characteristic of the British Constitution from
the legal point of view. The British Parliament is indeed supreme. There is no law which
it cannot make, repeal or amend.
• Unlike in Britain, Malaysia is a federation with a written constitution which is rather rigid
as mentioned above. Our Parliament does not have unlimited powers. The Parliament
derives its power from the constitution which divides legislative power between the
federation on the one hand and individual states on the other (see Articles 73-79).

• In Malaysia, courts are able to invalidate laws passed by Parliament (if it were to legislate
outside its powers). State law may also be invalidated by the courts on grounds such as:
outside the power of the State Legislative Assembly; inconsistent with the Federal
Constitution; or inconsistent with federal laws.
• Take note of case law demonstrating the supremacy of the constitution. For example, in
the of Ah Thian v. Government of Malaysia [1976] 2 MLJ 112- where Suffian L.P
observed: “The doctrine of supremacy of Parliament does not apply in Malaysia. Here we
have a written constitution. The power of Parliament and State legislatures in Malaysia is
limited by the Constitution, and they cannot pass any law as they please. Under our
Constitution written law may be invalid on one of these grounds: (1) Art 74; (2) in the
case of both Federal and State written law, because it is inconsistent with the
Constitution; (3) Art 75”.

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See also the case of Mamat bin Daud & Ors v. Government of Malaysia [1986] 2 MLJ
192- where the application for leave under Art 4(4) arose as to whether sec 298A of the
Penal Code and Criminal Procedure Code were ultra vires the Constitution being in
excess of the legislative power of the Parliament. Mohamed Azmi SCJ held that, for the
applicants to succeed, they must satisfy the court (a) leave is necessary under Art 4(4) &
(b) they have an arguable case in that the application is not frivolous. Since the present
application was not considered frivolous by the court, it allowed the applicants to canvass
their case before the full court on the constitutionality and validity of the new section.
• See also the case of City Council of Georgetown v. Government of the State of Penang
[1967] 1 MLJ 169, where the Federal Court applied Art 4 of the Constitution to invalidate
a State law which was inconsistent with federal law by making reference to Art 75. In
this case the Municipal (Amendment) (Penang) Enactment 1966 was passed by the
Penang State Legislature to administer municipal affairs of the State. The petitioner
claimed that the Enactment and related Orders were inconsistent with Local Government
Elections Act 1960 and therefore void. The court applied Art 75 and agreed that the
Enactment and related Orders were void. It is important to note that Art 75 does not apply
if Parliament has no power to pass the relevant Federal law.

See also the case of Yeoh Tat Hong v. Government of Malaysia & Anor [1973] 2 MLJ, it was
argued that a subsidiary legislation made by the State Authority in Penang under the National
Land Code 1965 was ultra vires and null and void. The applicant applied to the Federal Court for
leave to issue a writ of summons for declarations. The Federal Court held that the High Court
had jurisdictions to deal with the matter and thus no leave from the Federal Court was required.
It was also ruled that given the definition of “law” under Art 160 the subsidiary legislation in
Yeoh Tat Hong was not law under Art 4.

 See also the case of East Union (M) Sdn. Bhd. v. Government of the State of Johore &
Government of Malaysia [1980] 2 MLJ 143. Another argument raised was that before
the NLC there was already uniform law- though scattered in the various Enactments of
the Malay States and in the Strait Settlements and that “therefore the enactment of sec
100 of the NCL was not “for the purpose only of ensuring uniformity of the law and
policy”. Based on this line of argument, the applicant company asked for a declaration
that sec 100 of the National Land Code was void as it was ultra vires Art 76(4) of the
Federal Constitution. The court held that as the contention was that Parliament had no
power to pass the law under challenged and that it was not an inter-governmental dispute,
but one between a company and federal and state governments-leave was therefore
necessary. The federal government had argued that the application by the company was
superfluous. Suffian LP ruled, inter alia, that, “…I do not think it is fair to deny the
company opportunity of having this matter ventilated in court”.

• Important to note that the application of constitutional supremacy becomes more difficult
with the limitations imposed in Art 4(3) and (4).
• Furthermore, under Art 159 Parliament is clothed with power to make constitutional
amendments that are inconsistent with the Constitution. So, could the Federal
Constitution still be said to be supreme in such a situation? See the case of Phang Chin
Hock v. Public Prosecutor [1980] 1 MLJ 70, where the Federal Court held “The rule of
harmonious construction in construing Art 4 and Art 159 enables them to hold that Acts
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Lecture
of Parliament made in accordance with the conditions set out in Art 159 are valid even if
inconsistent with the Constitution”.
• Another case to cite is the case of Loh Kooi Choon v. Government of Malaysia [1977] 2
MLJ 187, where the Federal Court rejected the argument that the Constitution as the
Supreme law cannot be inconsistent with itself. In this case Parliament amended Art 5(4),
denying persons detained under restrictive residence law, right to production before a
Magistrate. The amendment was given retrospective effect to independence day.

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