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Constitutional Supremacy in Malaysia

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Since the common law replaced the Malay-Muslim law as the basic law, the country has exercised the doctrine of the constitutional supremacy. Unlike Malaysia, the British constitution isn’t the supreme law of the land; instead they practice the doctrine of parliamentary supremacy. The doctrine however is important for several reasons. Firstly is that one should appreciate the constitution to differentiate the Malaysian constitutional system than the British constitutional system. Even though the country’s constitutional and legal institutions have been modeled along the British’s style, the notion of constitutional supremacy does not form the basic foundations in the latter institution. Unlike Malaysia, the British constitution isn’t the supreme law of the land; instead they practice the doctrine of parliamentary supremacy. And secondly, many implications sprout from the notion of constitutional supremacy and these are very vital from the different opinions of constitutional work.

Supremacy means the highest in rank and this could also mean being as the highest law of the land. In fact in Malaysia, it is so. Why is a constitution supreme? How did it ranked the number 1 law of the land? The answer for the question seems very much straight forward, from the book A Critical Introduction to the Malaysian Constitution by Abdul Aziz Bari; “as a consequence of the document being the creator of various institutions and their powers. Secondly as the document that represents the agreements, ideals and values held aloft by the population, it is only natural that the constitution occupies supreme position. It is obvious that under the doctrine of constitutional supremacy, the constitution, essentially, functions as the standard or yardstick for the system. In other words, it operates as the controlling mechanism.”

Supremacy in our country’s context can be found in article 4 of the Federal Constitution. This article states that “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.” It can be safely assumed that the provision stated above is very important as otherwise there would be chaos or collapse especially when there is a conflict between state or any ordinary statutes and federal constitutions. The carrying out process of this provision could be illustrated in the case of Assa Singh (Assa Singh v Menteri Besar, Johor [1969] 2 MLJ 30 FC). A case involving a statute, the Restricted Residence Enactment 1933 which is a law that has passed the Independence Day date. In this particular case, the court held that such law must be read subject to the provision pertaining to personal liberty contained in the Federal Consitution.

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