CONSTITUTION

AL SUPREMACY
NOOR ‘ASHIKIN HAMID
LEARNING
OUTCOMES
• At the end of the lecture, students are able
to:
1. Explain the concept of constitutional
supremacy
2. Apply the concept of constitutional
supremacy in solving constitutional issues
Malaysia
Supremacy of
the Constitution
• Supremacy means the highest in the authority or rank.
• In the constitutional context- when the framers of the FC
completed the document, they considered the FC as the highest
law of the land and the source of governmental powers.
• A higher law has superiority over the institutions (such as
Parliament) it creates and takes precedence over all other laws.
• In most states where there is a written constitution, a distinction is
made between the law of constitution and ordinary law.
• In case of a conflict between the two, the constitution prevails.
• The superior courts have the power to invalidate government
action on the grounds of unconstitutionality.
 PARLIAMENT SUPREMACY
CONSTITUTIONAL SUPREMACY

• Parliament cannot go against

•Parliament is supreme.
• It can amend or alter the constitution at any time. constitution
• The Parliament can make laws concerning anything. • It cannot be amended except
•Unlimited power of Parliament by the Constitution.
•A valid law of Parliament cannot be questioned by
through special procedure.
the court. • The concept of constitutional
• Parliament is supreme. It can amend or
alter the constitution at any time. supremacy does not allow
any concept/doctrine of law
• Unlimited power of Parliament by the
constitution
to take precedence over the
written terms of the Federal
• It happen when the constitution is not written in one place
Constitution.
WHY CONSTITUTION
SHOULD BE
SUPREME?
• It is supreme because it creates other institutions for example
3 organs of the government.
• Constitution signifies the will of the people or represents the
aspiration of the people and therefore should be upheld.
• MARBURY V. MADISON, 5 U.S. (1 Cranch) 137 (1803),
established the principle of judicial review in the United
States, meaning that American courts have the power to strike
down laws, statutes, and some government actions that they
find to violate the Constitution of the United States.. “…
certainty, all those who have written constitution contemplate
them as forming the fundamental and paramount law of the
nation. Consequently, any act of the government or legislature
which is repugnant to the constitution is void”.
• LIYANAGE V THE QUEEN [1967] 1 AC 259, the Privy Council
observed, that powers in countries with written constitutions
must be exercised in accordance with the terms of the
constitution from which the powers were derived but of course
no validity should be given to acts which infringe the constitution.
• R (ON THE APPLICATION OF PRIVACY INTERNATIONAL) V
INVESTIGATORY POWERS TRIBUNAL AND OTHERS [2019] UKSC
22, the Supreme Court of the United Kingdom decided that
judicial review can be excluded by clear and explicit words in an
Act of Parliament.
• The case shows that even in a country where Parliament is
supreme, as opposed to a country where the constitution is
supreme, like Malaysia, judicial review can still be excluded by an
Act of Parliament and the court will uphold such law provided the
law is drafted in explicit and clear language.
• Suffian LP said in AH THIAN V
GOVERNMENT OF MALAYSIA
[1976] 2 MLJ 112:
• “The doctrine of the
supremacy of Parliament does
not apply in Malaysia. Here we
have a written Constitution.
The power of Parliament and
of state legislatures in Malaysia
is limited by the Constitution,
and they cannot make any law
they please”.
WHAT IS THE POSITION
IN MALAYSIA?
• The rule of constitutional supremacy
stated in Art 4 (1) of the FC:
“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”.
 Refer to Art 4 (1) of the FC

Important elements
WHAT IS • Supreme law – higher legal validity than any other
THE rule in society. All courts & administrators are
required to interpret legal, moral & social norms in
POSITION IN accordance with the Constitution.
MALAYSIA? • Federation – refers to the State of Malaysia including
federal government
• any law – in accordance with Art 160(2) refers to
written law, common law & recognized custom.
• after Merdeka Day – after 31 Aug 1957
• to the extent of the inconsistency – a court may
separate the valid from invalid & declare only the
offending part/s to be void = doctrine of severability
Supreme law
• The consequence of Art 4 (1) are far reaching.
• Art 4 (1) is strengthened by Articles 128 and 162 (6)
• 128 (1) (2) confers power on the superior courts to
determine the constitutional validity of federal and
state law and to invalidate them on the ground of
unconstitutionality.
• Art 162 (6) lays down that any court or tribunal
applying the provisions of any pre-Merdeka law
may apply it with such modification as may be to
bring it into accord with the Constitution.
 • Raja Azlan Shah FJ:
• The Constitution “…is the supreme law of the land
Loh Kooi and embodies 3 basic concepts:
a) An individual has certain fundamental rights upon
Choon v which not even the power of the State may
encroach
Govt of b) The distribution of sovereignty between the states
Malaysia and the Federation, that the 13 states shall exercise
sovereign power in local matters and the nation in
matters affecting the country at large.
c) No single man or body shall exercise complete
sovereign power, but that it shall be distributed
among the Executive, Legislative and Judicial
branches of government ….”
• The courts have the power to declare a written
law invalid on one of the following three grounds:
a) It violates the federal-state division of powers.
In the case of federal written law, because it
relates to a matter with respect to which the
Parliament has no power to make law & in the
case of State written law because it relates to a
matter with respect to which the SL has no
power to make law- art 74
b) If either Federal or State written law is
inconsistent with the Constitution, e.g., if it
violates fundamental rights- art 4(1)
c) If a State written law is inconsistent with
Federal law- art 75
Federal law vs
Constitution
• MAMAT BIN DAUD & ORS. V GOVERNMENT OF MALAYSIA, [1988]1
MLJ 119 petitioners were charged under section 298A of the Penal
Code which commits acts that threaten the unity between Islamic
religious by becoming bilal and khatib without authority. It was
contended that Parliament had no power to approve section 298A of
the Penal Code because the appointment is under the jurisdiction of
the state government as stated in Article 73-74 and list II of the Ninth
Schedule of the Constitution.
• Held: Parliament had no power to make the said amendment to the
Penal Code hence section 298A of the Penal Code is void and ultra
vires Article 74 of Federal Constitution.
Federal law vs Constitution
• PUBLIC PROSECUTOR V DATO’ YAP PENG [1987] 2 MLJ 311
• The respondent was charged with criminal breach of trust. The Deputy Public
Prosecutor tendered a certificate issued by the Public Prosecutor under
section 418A of the Criminal Procedure Code (CPC) to transfer the case to the
High Court.
• Respondent argue that section 418A of CPC violates Article 121(1) of Federal
Constitution thus unconstitutional.
• The Supreme Court held that section 418A of CPC contravenes Article 121(1)
of the Federal Constitution as the power to transfer cases is under the
jurisdiction of judicial power. Section 418A of CPC gives power to a non-judicial
power (Public Prosecutor) and therefore, section 418A of the Criminal Penal
Code was declared void as ultra vires Article 121(1) of the Federal Constitution.
• Although the case involved both legislative and executive power, the court still
upheld the supremacy of the Constitution.
 State law vs. Constitution
• DEWAN UNDANGAN NEGERI KELANTAN & ANOR V. NORDIN
SALLEH & ANOR (1) [1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72.
• The Kelantan State Constitution by art. XXXIA provides that a
member of the State Legislative Assembly who is a member of a
political party, shall cease to be a member of the legislative
assembly if he resigns or for any reason ceases to be a member of
such political party.
• The issue in that case was whether such a provision was
inconsistent with art. 10(1)(c) of the Constitution and if so, to that
extent invalid by virtue of art. 4(1) of the Constitution.
• Held the restriction sought to be imposed by the State Constitution
was invalid as the State Constitution, being State law, could not
impose such a restriction
State law vs. Constitution

• CITY COUNCIL OF GEORGE TOWN V GOVERNMENT OF

THE STATE OF PENANG [1967] 1 MLJ 169.
• The court ruled that the Municipal (Amendment)
Penang Enactment 1966 and City Council of George
Town (Transfer of Functions) Order 1966 were void.
They were inconsistent with the Local Government
Elections Act 1960.
• “a State law is invalidated to the extent of any
inconsistency therein with a Federal law by Article 75
of Federal Constitution, notwithstanding even that the
State law may be within the competency of the State
Legislature”.
 Jurisdiction- art 4 (3)

• The application of constitutional supremacy becomes more

difficult with the limitations imposed in Art 4 (3) and 4 (4).
• The power to declare invalid on the ground of violation of the
federal-state division of powers is subject to several
restrictions:
a) The challenge must lie by way of proceeding for a
declaration that the law is invalid on the following grounds:
If the law was made by Parliament, in proceedings between
the Federation and one or more States;
If the law was made by the SLA, in proceedings between the
Federation and the government of a state.
Jurisdiction- art 4 (3)

b) The proceeding may be brought by

An individual v another individual;
(PM V MB) or
An individual v a government (X v
Kerajaan Malaysia); or
A government v another
government (Kerajaan Malaysia v
Kerajaan Negeri); or
a government v an individual
Kerajaan Negeri v X).
Jurisdiction
c) The Federation and the State are entitled to be
a party to such proceedings to ensure that no
adverse ruling is made without giving the
relevant government an opportunity to argue to
contrary
d) Only the Federal Court has jurisdiction to
determine whether a law made by Parliament
or by SLA is invalid- art 128 (1)
Requirement of leave
• 4(4) Proceedings for a declaration that a law is
invalid on the ground mentioned in Clause (3)
(not being proceedings falling within paragraph
(a) or (b) of the Clause) shall not be commenced
without the leave of a judge of the Federal
Court; and the Federation shall be entitled to be
a party to any such proceedings, and so shall any
State that would or might be a party to
proceedings brought for the same purpose
under paragraph (a) or (b) of the Clause.
Requirem • In STEPHEN KALONG
NINGKAN V
• In MAMAT BIN DAUD,
Mohamed Azmi SCJ
ent of GOVERNMENT OF
MALAYSIA [1968] 1 MLJ
held that “for the
application to
leave 119, the plaintiff sought a
declaration to the effect succeed, they must
that the Emergency satisfy the court firstly
(Federal Constitution of that the leave is
Sarawak) Act 1966 was null necessary under art 4
and void. HC held the leave (4) and second that
of the Federal Court judge they have an arguable
must be obtained before case in that the
proceeding for a application is not
declaration can be brought
in the High Court. frivolous”.
• STATE GOVERNMENT OF NEGERI SEMBILAN
& ORS v. MUHAMMAD JUZAILI MOHD
KHAMIS & ORS, since the respondents had
failed to follow the specific procedure as laid
down in cls. (3) and (4) of art. 4 of the
Federal Constitution, the learned judges of
the Court of Appeal as well as the High Court
were in grave error in entertaining the
respondents’ application to question the
validity or constitutionality of s. 66 by way of
judicial review. The courts below were not
seized with the jurisdiction to do so. It is trite
that any proceeding heard without
jurisdiction or power to do so is null and void
ab initio (from the beginning).
MOHD KHAIRUL AZAM BIN ADUL AZIZ V MENTERI
PENDIDIKAN & ANOR [2020] 1 MLJ 398

• The application sought leave of a Federal Court judge, under art 4(4) of the FC, to
seek the Federal Court’s ruling on a matter in the exercise of its original
jurisdiction under Art 128(1)(a) of the FC. The applicant sought a declaratory
order against the respondents that Parliament had no power under art 152 of
the FC to enact ss 17 and 28 of the Education Act 1996 (‘the impugned
provisions’), and which were thereby invalid, to give the Minister of Education
discretionary power to establish national-type Chinese and Tamil primary schools
where the medium of instruction was not in the national language. The
impugned provisions provided that the national language shall be the main
medium of instruction in all educational institutions except in a national-type
school established by the Minister or in any other educational institution
exempted from the ruling. The applicant argued that even if Parliament had
power under the FC to enact laws on matters of Education, such power had to be
exercised without violating Art 152 of the FC which provided for the Malay
language to be the national language.
 MOHD KHAIRUL AZAM BIN ADUL
AZIZ V MENTERI PENDIDIKAN &
ANOR [2020] 1 MLJ 398

• The respondents argued that the applicant’s leave application was

misconceived because the declaration sought did not meet the requirements
of art 4(3) of the FC which could be invoked only if the validity of any law was
questioned on the ground that it provided for matters with respect to which
Parliament had no power to make laws. The respondents submitted that the
FC empowered Parliament to legislate upon matters of education including the
impugned provisions. The respondents said that the applicant’s real complaint
was that the impugned provisions were invalid for violating Art 152 of the FC,
but such a complaint did not fall within Arts 4(3) or (4) and, consequently, the
leave application should be dismissed.
• HELD- It was well within Parliament’s power to enact the impugned
provisions. As the legislative competency of Parliament to enact the impugned
provisions was not in issue, the question of obtaining leave under art 4(4)of
the Federal Constitution did not arise. The leave application was wholly
misconceived and had to be dismissed.
PRE-MERDEKA LAW
 Validity Of Pre-Merdeka Laws
• ART 4 (1) only states on the position of post Merdeka law. What happens to
pre-Merdeka or existing law? “Existing law” means any law in operation in the
Federation or any part thereof immediately before Merdeka Day;
• 162. (1) the existing laws shall, until repealed by the authority having power to
do so under this Constitution, continue in force on and after Merdeka Day,
with such modifications as may be and subject to any amendments made by
federal or State law.
• (2) Nothing in Article 75 shall invalidate the amendment or repeal by reason
only that the existing law, relating to a matter with regard to which Parliament
as well as the Legislature of a State has power to make laws, is federal law as
defined by Article 160.
• (6) Any court or tribunal applying the provision of any existing law which has
not been modified on or after Merdeka Day under this Article or otherwise
may apply it with such modifications as may be necessary to bring it into
accord with the provisions of this Constitution
• Article 162(6) of the Constitution refers to the laws made before Merdeka Day.
 • ASSA SINGH V. MENTRI BESAR, JOHORE [1968] 1
LNS 9; [1969] 2 MLJ 30, the applicant was
Validity arrested and detained under the Restricted
pre- Residence Enactment (Enactment).
• Issue: Whether the Enactment (pre-Merdeka law)
Merdeka inconsistent with provisions of arts. 5 and 9 of
law the Constitution?
• HELD – The Enactment must be applied with such
adaptations as may be necessary to bring it into
accord with the Constitution. The law must
modify to bring it into accord or harmony with
the FC.
SURINDER SINGH KANDA V THE
GOVERNMENT OF THE FEDERATION OF
MALAYA, (1962) 28 MLJ 169

• It was contended that the dismissal of an Inspector of

Police was void on the ground that the Police
Ordinance was contrary to Article 135(1) of the
Constitution.
• Privy Council-Lord Denning applied Article 162(6) and
stated that in a conflict between the existing law and
the Constitution, the Constitution must prevail, and
the Court must apply the existing law with such
modifications as may be necessary to bring it into
accord with the Constitution.
• AMINAH V SUPERINTENDENT OF PRISON,
PENGKALAN CHEPA, KELANTAN, [1968] 1 MLJ
92 it was challenging the detention on the
ground that there had been non-compliance with
Article 5(3) of the Federal Constitution in that the
detained had not been informed as soon as may
be of the grounds of his arrest. The court applied
Article 162(6).
• Wan Suleiman J held that the Restricted
Residence Enactment (F.M.S. Cap. 39) must be
read subject to Article 5 of the Constitution and
that there should be read into the Enactment the
right of an arrested person to be informed within
a reasonable time of the ground of his arrest.
• DATUK SERI SAMY VELLU V NADARAJAH,
[2000] 8 CLJ 117- the issue raised on whether
ss133-136 of CPC is inconsistent with art 145
(3) of the FC.
• Held: “The mere fact that CPC is pre-Merdeka
law does not mean that it is necessarily
inconsistent with FC. The court must apply the
pre-Merdeka law with such modification which
terms include amendment, adaption and
repeal as be necessary to bring that provision
of the pre-Merdeka into accord with the FC”.
• It means the law may be applied with such
amendment, adaption, or repeal if necessary.
• LETITIA BOSMAN v. PP & OTHER APPEALS [2020] 8 CLJ 147
• Appellants were separately charged, convicted, and sentenced
to death by the High Court for trafficking in dangerous drugs
contrary to s. 39B of the Dangerous Drugs Act 1952 (‘DDA’).
• Pubalan was charged, convicted, and sentenced to death by the
High Court for the offence of murder under s. 302 of the Penal
Code ('Code'). The law, at all material times, makes it
mandatory for courts to impose the death penalty for all
offenders under ss. 39B of the DDA and 302 of the Code.
• Issue: whether, in relation to Pubalan and since the Code is a
pre-Merdeka statute, the court was under a duty to modify s.
302 to bring it into accord with the FC pursuant to cl. (6) of art.
162
• HELD- The Code is a pre-Merdeka law. Thus, being a pre-
Merdeka law, s. 302 of the Code cannot be declared void or
invalid pursuant to art. 4 of the FC, as opposed to post-Merdeka
law. If at all there is any inconsistency between the provision
and the FC, then cl. (6) of art. 162 must be invoked to remove
that inconsistency.
JAMALUDDIN MOHD RADZI & ORS v. SIVAKUMAR
VARATHARAJU NAIDU; SURUHANJAYA PILIHAN RAYA
(INTERVENER) [2009] 4 CLJ 347,fc

• Issue: The respondent argued that the Perak Constitution,

being a State law, could not be amended by the State
Enactment No. 4 of 1996, which was passed after Merdeka
Day, to amend the words “Supreme Court” to “Federal
Court” to give jurisdiction on the Federal Court to hear the
application.
• Held: Article 63 of the Perak Constitution, being a pre-
Merdeka written law, falls within the meaning of “Federal
law” and therefore, an “existing law” as defined in art. 160(2)
of the Federal Constitution.
• Thus, it continues in force on or after Merdeka Day subject to
any amendments made by State law.
• The subsequent amendment to art. 63 in substituting the
words “Federal Court” for the words “Supreme Court” was in
accord with art. 162(1) of the Federal Constitution which
expressly allows for any amendments to be made to the
existing law by State law.
PP v. AZMI SHAROM [2015] 6 MLJ 751

• The defendant was charged with an offence under s. 4(1)(b) and or s. 4(1)(c)
of the Sedition Act 1948 (‘the Act’). The charges relate to two seditious
statements made by the defendant as reported by the Malay Mail online on
14 August 2014.
• Issue: The issue therefore was whether the Act was saved by art. 162 of the
Constitution
• The Act was first enacted as the Sedition Ordinance 1948 (SO) by the Federal
Legislative Council and came into force on 17 July 1948. The SO had an effect
throughout the Federation of Malaya. The SO sought to consolidate the
various existing Sedition Enactments in the Malay States and in the Straits
Settlements into a single law. The SO was later revised in 1969 under the
Revision of Law Act 1968 and renamed as the Sedition Act 1948. It was a pre-
Merdeka law.
• Held: Art 162 of the Constitution is a transitional provision intended to
ensure the continuance of all existing laws after Merdeka Day with such
modifications as may be made under the said article and subject to any
amendment as may be made by Federal or State law. The court or tribunal
are given further powers to make any necessary modification to any such law
to bring it into accord with the Constitution. The Act was constitutional.
Post vs pre-
Merdeka Law
• Art 4 (1) states that in the event a post-
Merdeka law is inconsistent with the FC
then it will be void to the extent of
inconsistency.
• When the law has been held void to
some extent, what happen to the rest?
• The court is not obliged to invalidate the
entire law. It may separate of severe the
valid from invalid and declare only the
offending part or parts to be void.
• This is the doctrine of severability.
 MALAYSIA BAR V GOVERNMENT OF MALAYSIA [1986] CLJ 508
HC

• When the Legal Profession Act initially came into force on June 1, 1977, there were no restrictions
as to the eligibility of persons to be members of the Bar Council. Every lawyer who is a member of
the Malaysian Bar was qualified to serve on the Council.
• However, since January 24, 1978, a lawyer with less than seven (7) years' standing has been
disqualified. The disqualification was introduced by the LPA (Amendment) Act 1978 which
enacted a new section 46A.
• Harun J. in the High Court held that paragraph (a) of section 46A (1) is not unconstitutional in so
far as it disqualifies a lawyer with less than seven years' standing from being a member of the Bar
Council and a State Bar Committee but unconstitutional as regards disqualifying him from being a
member of a committee of the Bar Council or a State Bar Committee.
• “in applying the doctrine of severability, the words or of any committee of the Bar Council or a Bar
Committee appearing in s 46A is so far as they affected para(a) therefore were void, but the
remaining provisions are not void”.
 • Art 4 (1)- if law clashes with FC the courts have no
choice but to declare it (or part of it) null and void.
Courts cannot modify the law to fill in gaps in it to
incorporate the constitution’s promises.
Differences • Art 162 (6), (7) – courts have a wider choice. They
between may amend, adapt or repeal an offending piece of
legislation.
art 4 (1) • DATUK SERI SAMY VELLU V NADARAJAH (2001) the
different approach taken by Article 4(1) and 162(6) of
and 162 (6) Federal Constitution is in the former, any post-
Merdeka law which is inconsistent with the
Constitution shall be declared void to the extent of
the inconsistency while in the latter, any pre-Merdeka
law which is inconsistent with the Constitution shall
be continued with the necessary modifications to
render it consistent with the Constitution.
 Issue: Is it supreme when it can be
amended?
• Methods of amendment
• Amendment of the Constitution is provided for in Article 159.
• Clause (1) declares that “Subject to the following provisions of this Article and to Article 161E,
the provisions of this Constitution may be amended by federal law”.
• The Article then prescribes four different methods for amendment of the different provisions of
the Constitution:
1. Amendment by way of simple majority at both the Senate and the House of Representative.
Article 159 (3);
2. Requires the support of two-thirds majority of the members of both houses. Article 159(4);
3. Requires the 2/3 majority and the consent of the Conference of Rulers. Art 159(5);
4. The fourth method of amendment stipulates a 2/3 majority and the consent of either the
Yang di-Pertua Negeri of Sabah or Sarawak: Article 161E.
Amendment to constitution
1. Amendment by way of simple majority at both the Senate and the House of
Representatives - Article 159(4)
• These are amendments with regard to:
• a) amendments to part III of the second schedule (containing supplementary
provisions relating to citizenship); to the sixth schedule (containing forms of oath and
affirmation); and to the seventh schedule (dealing with the election and retirement of
senators);
• b) Any amendment incidental to or consequential on the exercise of any power to make
law conferred on Parliament by any provision of the constitution other than articles 74
and 76;
• bb) Subject to Art 161E (admission of Sabah & Sarawak) any amendment made for or in
connection with the admission of any state to the Federation or its association with the
states of the Federation, or any modification of the constitution made as to its
application to a state so previously admitted or associated.
• c) Any amendment consequential on an amendment made under paragraph (a).
2. Requires the support of two-thirds majority
of the members of both houses.
• Amendments not included in the above
categories nor in the next, require only the
approval of a two-thirds majority in each House
of Parliament, and do not require for their
validity the consent of the Conference of Rulers
nor the concurrence of any of the Sabah and
Sarawak’s Yang di-Pertua Negeri.
3. Requires the 2/3 majority and the consent of
the Conference of Rulers - Article 159(5)
• A law making an amendment to Clause (4) of
Article 10, any law passed thereunder, the
provisions of Part III, Article 38, 63(4), 70,71,
72(4), 152 or 153 or to this Clause shall not be
passed without the consent of the Conference
of Rulers.
4. The fourth method of amendment
also stipulates a 2/3 majority and the
consent of either the Yang diPertua
Negeri of Sabah or Sarawak.
• These amendments of special interest to
Sabah and Sarawak enumerated in clause
(2) of Article 161E require not only the
approval of a two-thirds majority in each
House of Parliament but also the
concurrence of the Yang di-Pertua Negeri
of Sabah and Sarawak.
• They are amendments to the constitution
that affect the right of persons born
before Malaysia Day, the constitution and
jurisdiction of the High Court in Sabah
and Sarawak, the matters with respect to
which the legislature of the state may, or
Parliament may make laws, and religion
in the state and the use of any language
and the special treatment of natives of
the states.
• The Reid Commission (1957)
suggested that: “Amendments should
be made by Act of Parliament
provided that an Act to amend the
Constitution must be passed in each
House by a majority of at least two-
thirds of the members voting. In this
matter, the House of Representatives
should not have the power to
overrule the Senate. We think that
this is a sufficient safeguard for the
States because the majority of
members of the Senate will represent
the States” (para. 80).
 LOH KOOI • Raja Azlan Shah
• “It is therefore plain that the framers of our
CHOON V Constitution prudently realised that future context
GOVERNME of things and experience would need a change in
NT OF the Constitution, and they, accordingly, armed
Parliament with “power of formal amendment”.
MALAYSIA They must be taken to have intended that, while
[1977] 2 MLJ the Constitution must be as solid and permanent as
we can make it, there is no permanence in it. There
187. should be a certain amount of flexibility so as to
allow the country’s growth. In any event, they must
be taken to have intended that it can be adapted to
changing conditions, and that the power of
amendment is an essential means of adaptation. A
Constitution has to work not only in the
environment in which it was drafted but also
centuries later”.
 • Suffian LP
PHANG • “It is correct that amendments made to the constitution
are valid only consistent with its existing provisions, then
CHIN HOCK clearly no change whatsoever may be made to the
V PUBLIC constitution: in other words, art 159 is superfluous, for
the constitution cannot be changed or altered in any
PROSECUT way, as it has been craved granite. If our constitution
makers had intended that their succession should not in
OR. [1980] any way their handiwork, it would have been perfectly
1 MLJ 70. easy for them to provide; but nowhere in the
constitution does it appear that was the intention, even
if they had been doing unrealistic as to habour such
intention, on contrary apart from art 159 there are many
provisions showing that the constitution should be a
living document intended to be workable between the
partners that constitute the Malayan polity, a living
document that is reviewable from time to time in the
light of experience and if need be amended”.
 Issue: Is it remaining supreme
during emergency/ subversion?
• Emergency laws passed during an emergency are
considered valid even if they are inconsistent with
provisions in the Constitution, except for a limited scope
of matters, during an emergency.
• These exceptions are only applicable to matters related to
religion, citizenship, language, Malay customs, and native
law or customs in Sabah and Sarawak, as specified in
Article 150 (6A) of the constitution. Fundamental liberties
such as freedom of movement, freedom of speech,
assembly, and association guaranteed under our
constitution can be suspended during an emergency.
• Once a proclamation of emergency is made by YDPA
under art 150, Parliament is authorized to suspend the
entire Constitution; fundamental rights can be suspended,
federal-state division power can be violated, and election
can be postponed.
• Article 149 authorises Parliament by a simple majority procedure to
enact laws to combat subversion, and these laws shall be valid even if
they transgress the guarantees of personal liberty (Article 5), freedom
of movement (Article 9), freedom of speech, assembly, and association
(Article 10) and right to property (Article 13).
• 'Subversion' has been defined in Article 149 (1) to refer to the following:
causing people to fear organised violence; exciting disaffection against
the government; promoting feelings of ill-will between classes of the
population in such a way as is likely to cause violence; procuring
alteration, otherwise than by lawful means of anything by law
established; prejudicing the maintenance of any supply or service to the
public; or causing prejudice to public order or national security.
• This subversion “is of such a broad catch-all nature”.
• Art 149 authorizes the parliament to enact simple majority laws to
combat subversion and these laws shall be valid even if they transgress
certain rights.
The End