CONSTITUTIONAL SUPREMACY IN SOUTHEAST ASIA: THE CASE OF MALAYSIA
GUEST LECTURE BY THE RIGHT HONOURABLE THE CHIEF JUSTICE OF MALAYSIA TUN TENGKU MAIMUN BINTI TUAN MAT ON THE OCCASION OF GLOBAL SOUTH NETWORK JUDGES’ GUEST LECTURE SERIES
DELIVERED ONLINE ON 23 MAY 2025
The Right Honourable Tun Tengku Maimun binti Tuan Mat was born in Kota Bharu, Kelantan on 2 July 1959. The Right Honourable read law at the University of Malaya and graduated with honours in 1982.
The Right Honourable Tun began her career in the legal field as a Legal Officer at the Southern Kelantan Development Board (KESEDAR) in 1982 and later in 1984, as a Legal Officer at the Municipal Council of Seremban, Negeri Sembilan. The Right Honourable Tun joined the Judicial and Legal Service in 1986 as an Assistant Parliamentary Draftsman, at the Drafting Division of the Attorney-General’s Chambers. Subsequently, The Right Honourable Tun served as a Magistrate at the Port Dickson Court, as a Federal Counsel at the Kuala Terengganu Legal Aid Bureau, as a Senior Assistant Registrar at the High Court at Seremban, as a Deputy Registrar at the High Court of Kuala Lumpur, as a Special Officer to the Right Honourable Chief Judge of Malaya, as a Special Officer to the Right Honourable Chief Justice, as a Judge of the Sessions Court at Kuala Lumpur cum Special Officer to the Right Honourable Chief Justice, and as the Registrar of the High Court of Malaya cum Chief Registrar of the Federal Court of Malaysia. The Right Honourable Tun’s final posting in the Judicial and Legal Service was as the Chief Registrar of the Federal Court of Malaysia from 2005 to 2006.
On 2 October 2006, The Right Honourable Tun was appointed as a Judicial Commissioner of the High Court of Malaya at Kuala Lumpur. On 5 September 2007, The Right Honourable was elevated as a Judge of the High Court of Malaya at Kuala Lumpur. The Right Honourable Tun also had the experience of serving as a Judge of the High Court of Malaya at Shah Alam, Selangor.
On 8 January 2013, The Right Honourable Tun was appointed as a Judge of the Court of Appeal. On 26 November 2018, The Right Honourable Tun was appointed as a Judge of the Federal Court. On 2 May 2019, The Right Honourable Tun was appointed as the Chief Justice of Malaysia.
The Right Honourable Tun was conferred with Darjah Seri Paduka Setia Mahkota Kelantan (SPSK) in 2016 carrying the title Dato’ and in 2006, with Darjah Dato’ Paduka Setia Mahkota Kelantan (DPSK) also carrying the title Dato’. On 13th July 2019, The Right Honourable Tun was conferred with Darjah Utama Pangkuan Negeri carrying the title Dato’ Seri Utama. On September 10th, 2019, The Right Honourable Tun was conferred with Darjah Panglima Mangku Negara carrying the title Tan Sri and on August 17th, 2020, The Right Honourable Tun was conferred with Darjah Seri Setia Mahkota carrying the title Tun.
Distinguished guests, ladies and gentlemen,
Assalamualaikum warahmatullahi wabarakatuhu and a very good day.
INTRODUCTION
I would like to extend my gratitude to the Global South Network (GSN), in particular Dr Nauman Reayat, for inviting me to deliver this prestigious guest lecture. As I understand it, numerous other renowned Judges from other respectable jurisdictions have been invited to do the same in the past and it is truly humbling to me to be included within such a distinguished class of persons.
The topic of the lecture that I have been assigned reads: ‘Constitutional Supremacy in South East Asia: The Case of Malaysia’. It is a very heavy and technical topic that can render even the most excited of crowds bored. Nonetheless, please bear with me.
South East Asia comprises a wide range of jurisdictions all with their own unique constitutional and legal systems. These jurisdictions are Brunei, Burma (or Myanmar), Cambodia, East Timor (or Timor-Leste), Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, and Vietnam.
As the title already suggests, I will limit the scope of my lecture to the case of Malaysia.
Before I begin, I would be remiss if I did not first start with the caveat that I am a sitting Judge. I have answered this invitation to speak to mostly students with the view to sharing my thoughts on the subject without commenting on the outcome on any pending litigations.
It is also for this reason and in abundance of caution that, regrettably, I have decided to decline a question-and-answer session that customarily accompanies these guest lectures. So, to those of you who are disappointed, I apologise.
BRIEF LEGAL HISTORY ON MALAYSIA’S FEDERAL CONSTITUTION
In order to appreciate the context of our Federal Constitution, and considering that a majority of the audience is not Malaysian, it is imperative that I start with a brief history on the Federal Constitution.
Malaysia is a Federation and so we are more appropriately known as the Federation of Malaysia. The federation comprises primarily two territories known generally as West Malaysia or Peninsular Malaysia; and East Malaysia, or two territories of Borneo that are respectively known as Sabah and Sarawak. West and East Malaysia are divided geographically by the South China Sea.
Malaysia was colonised on several occasions throughout history. The last and longest of these was by the British. This colonisation however was not uniform and trickled into Malaysia directly and indirectly through various means.
West Malaysia was primarily governed and influenced by the British East India Company again either through direct or indirect means. Two Malayan territories namely Malacca and Penang were British colonies and as such, they were British territories. As for the rest of the main territories or States in Malaya, they were ruled and still remain ruled in principle by their respective sultanates. In total there are nine sultanates. During British influence, the respective Sultans of these nine territories were heavily advised by British Residents.
In 1948, after World War II and a brief displacement of British rule by a brief Japanese occupation, an attempt was made by the returning British colonialist to federalise West Malaysia culminating in the formation of the Malayan Union. With the emergence of independence movements throughout the world in the aftermath of World War II with nations primarily like India and Pakistan, the formation of the Malayan Union was heavily opposed by locals and the British influence was beginning to see its end.
By 1957, specifically on 31 August 1957, West Malaysia, or Malaya as it was then known, successfully declared independence from the British. There was no violent bloodshed or revolution. What happened was that political elites from the Malay and other multicultural parties together with the Sultans of the Nine States and the British rulers in the years between 1948 and 1957 successfully negotiated a written constitution for Malaysia premised on a social contract.
That there was a social contract is a fact of history and it is prevalent in our Federal Constitution. As for its existence, there are social and political reasons. As a result of nearly 168 years of British influence, Malaya had seen an influx of immigrants from China and India and other surrounding Asian territories many of whom today are proud Malaysians. But at the time, there was fundamental shift in the local population’s demographics, political and economic imbalance between the Malay population and the immigrants, and the fact that we had nine entirely separate systems of governance in the nine different monarchies.
In order to reconcile these fundamental differences, the Government of the United Kingdom and local leaders agreed to form a multinational commission to develop a written constitution for Malaya. This commission is popularly known as the Reid Commission. I will read to you their terms of reference:
“3. The members of the Commission were appointed in the name of Her Majesty the Queen and Their Highnesses the Rulers with terms of reference as follows:
“To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the positions and dignities of Her Majesty the Queen and of Their Highnesses the Rulers: and
To make recommendations for a federal form of constitution for the whole country as a single, self-governing unit within the Commonwealth based on Parliamentary democracy with a bicameral legislature, which would include provision for:
the establishment of a strong central government with the States and Settlements enjoying a measure of autonomy (the question of the residual legislative power to be examined by, and to be the subject of recommendations by the Commission) and with machinery for consultation between the central Government and the States and Settlements on certain financial matters to be specified in the Constitution;
the safeguarding of the position and prestige of Their Highnesses as constitutional Rulers of their respective States;
a constitutional Yang di-Pertuan Besar (Head of State) for the Federation to be chosen from among Their Highnesses the Rulers;
a common nationality for the whole of the Federation;
the safeguarding of the special position of the Malays and the legitimate interests of other communities.”.
I must highlight again that unlike the constitutions of say India or Pakistan that were drafted by their own elected representatives at the time, the Malayan Constitution was developed by an unelected commission which comprised directly and indirectly the nine Sultans, local political elites who did the initial work and later consulted the public through open sessions. These terms of reference, like the terms of a binding contract, were agreed by all stakeholders as being the conditions that would exist in an entirely self-governed and self-sustaining nation bearing in mind the historical impact of Malaya’s demography after more than a century and half of colonisation.
Premised on these very important terms of reference, the Malayan Constitution included and still includes the following foundational stipulations, and in no particular order of importance, they are:
A declaration of Islam as the official religion of the Federation but with a guarantee of freedom of religion for all other faiths;
The demarcation of civil and Syariah Courts and the continued application of Islamic law for Muslims only on certain matters limited to personal law and custom;
A federal form of government meaning governments at both federal and State governments with central bias of power in the Federation;
The formation of a democratically elected bicameral legislature;
The preservation of the nine pre-existing Sultanates who would continue to reign as Heads of States in their respective States and reconciled at the federal level by establishment of the position of Yang-Di Pertuan Agong (“YDPA”) or King of Malaysia elected rotationally among the nine Sultans for a period of 5 years per term as the Head of State at the federal level;
The language of Bahasa Melayu as the National Language;
A constitutional guarantee of fundamental liberties or own Bill or Rights;
Provisions on citizenship premised on a fusion of jus soli and jus sanguinis; and
The creation of the three arms of Government namely, the Executive, the Legislature and the Judiciary.
These terms saw the creation of a Malayan nation that came to be known now as a democratic monarchy. Most notably, the Federal Constitution contains the Ninth Schedule that in turn houses three Lists. The First List enumerates expressly but broadly the exclusive powers of legislation of federal Parliament. The Second List does the same in respect of the exclusive powers of legislation of the State Legislatures while the Third List details in the same way mutual powers of legislation.
Another thing that was established by the Federal Constitution was the formation of an entirely and completely independent and centralised Judicial arm of Government. I use the phrase “entirely and completely independent” because Malaysia adopted the Westminster form of Government. What this means is that members of the Executive branch of Government are not directly elected. They consist of members of the Parliament that are mostly elected to its lower House (Dewan Rakyat) and some members who are appointed from the upper House (the Dewan Negara).
Thus, like the Westminster system, the Executive and federal legislative branches are fused. The Prime Minister is a person elected to the House of Representatives and who is appointed by the YDPA, who in the YDPA’s judgment is likely to command the confidence of the majority of the members of that lower House. The rest of the Cabinet is then also appointed by the YDPA but on the binding advice of the Prime Minister.
It works the same way at the State Level and their respective State Governments. They have their own respective State Legislatures whose members are elected. One member is then appointed by the Sultan or Governor (of a State without a Sultan) to be the Chief Minister or Menteri Besar or Premier. The title is the same in principle but changes only in name depending on the State. The Chief Minister/Menteri Besar/Premier then appoints his own State Cabinet known as the Exco.
Insofar as the Judiciary is concerned, it exists only at the federal level. While there are branches of the Superior and Subordinate Courts in the various States, they are all coordinated, operated and funded federally. Their powers extend to interpreting, applying and enforcing all federal and State laws, and for the Superior Courts, this includes the Federal Constitution.
And because we adopted the British system in large part, our Courts follow the common law system wherein judicial precedents carry the force of law as opposed to just binding the parties in that case. Further, we apply stare decisis in that precedents from higher Courts bind the lower Courts. Cases from the common wealth including from the United Kingdom (‘UK’) especially in common law heavy areas such as tort law are frequently cited and applied.
In any case, all the fundamental features that I cited to you just now, I deliberately left out one because it forms the basis of the lecture. And it is that under the terms of our Federal Constitution which was negotiated politically to condition the formation of Malaya, it was agreed that the Federal Constitution would reign supreme. The most foundational clause of the Federal Constitution from which all other clauses flow is therefore Article 4(1), which reads:
“4. (1) 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.”.
Merdeka Day refers to Independence Day i.e. 31 August 1957.
It is to be noted that in 1963, the Federation of Malaya was renamed to the Federation of Malaysia upon the admission of three territories two of them now comprising East Malaysia, that is to say, the two Bornean territories of Sabah and Sarawak. The Malaysia Act 1963 was passed to cater for the admission of these territories.
The third of these territories was Singapore who also joined Malaysia in 1963. However, two years later in 1965, Malaysia and Singapore parted ways and Singapore became its own sovereign nation with its own written constitution from then on.
In the formation of Malaysia, there was no fundamental change to the basic features of the Federal Constitution especially to Article 4(1) but just that additional clauses were inserted to cater for additional legislative powers for the Bornean States and institutional protections of their sovereignty.
And thus, the main discussion of this topic, Article 4(1) that enshrines constitutional supremacy remains extant and alive right from 1957 until this very day.
Before I delve deeper into the notion of constitutional supremacy, I must first say a few words on its counterpart, that is, Parliamentary supremacy. This is because in almost every constitutional adjudication in Malaysia, the Courts are often reminded and do often themselves reiterate the words of our former erudite and revered Lord President Tun Suffian who in the case of Ah Thian, said, in no uncertain terms, and I quote:[1]
“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.”.
PARLIAMENTARY VS CONSTITUTIONAL SUPREMACY
It is important to understand as I stated earlier, that Malaysia does not just apply the common law form of judicial administration, but we have also throughout history, applied common law decisions including English decisions. This is to no one’s fault considering that before and for many years after Independence, almost all our Judges at all levels were English trained and were steeped in English tradition, thinking and ideologies. This, as will be shown later, posed a significant challenge insofar as constitutional and administrative law is concerned because, in my view, it allowed English law and ideology to creep into our legal system beyond the written words of our own Federal Constitution – specifically, notions of Parliamentary supremacy.
As such, in appreciating constitutional supremacy here in Malaysia, we must first understand its diametrically opposed concept of Parliamentary supremacy.
In my own words, Parliamentary supremacy simply means that Parliament is the ultimate constitutional authority in that nation. The most obvious and applicable example in this is the United Kingdom (‘UK’).
The reason why I gave that brief history lesson earlier is to demonstrate that history plays a monumental role in the development of a constitution and constitutional theory. So, it is important to understand how Parliamentary supremacy came about in the British context albeit in a very simplified manner.
Britain was once a heavily monarchic nation where the King was considered sovereign and supreme, and the source of all law and order. The King’s words and edicts were law and even formed the basis of religious beliefs and customs. British Kings were often influenced by aristocrats and aristocratic families. Early on, the lay folk or commoners had little influence in governance. They were mostly a workforce and a source of taxation and war resources.
Eventually, aristocrats and lay people alike started to revolt mostly due to taxation and policy differences. Over the course of centuries, the sovereign Kings and even Queens started to lose power to the people they governed in the formal body that became Parliament. Such an institution was a major organ to check and balance and even in some cases, regulate the acts and proclamations of the sovereign. Eventually, Parliament became the very embodiment of the People and all other organs of State including the Monarchy were rendered subordinate to it as the ultimate authority even standing above the Judiciary and the Executive branches.
That is why in the UK, it is principally Parliament and not anyone else that is both supreme and sovereign. Parliament makes and unmakes laws even at the constitutional level. An example to illustrate how Parliament stands even above the Judiciary is by reference to the old practice of its passing of Acts of Attainder.
An Act of Attainder is essentially a law that Parliament can pass to legislatively convict a person for any offence without a trial. It is a means to completely bypass any judicial trial or judicial deliberation. Their existence is not imagined or fictional. You will most probably recall that during the time of King Henry VIII, an Act of Attainder was infamously passed to render one of his wives, Catherine Howard, guilty of treason for committing adultery with one Thomas Culpeper and for committing pre-marital affairs, and punishing her with death – all without a trial – public or otherwise. This is just one of the many historical English examples.
Acts of Attainder eventually fell out of favour in the UK and by 1870, Parliament formally and effectively abolished the use of such legislation by passing the Forfeiture Act 1870. Yes, you will notice that it was Parliament that abolished its own reliance on such legislation. It was not by reason of a Court decision.
This methodology effectively spurred the direction of legal development in the UK. The Courts there are very different in that they are also subordinate to Parliament. This is probably where the saying stems that the Courts are tasked with interpreting law and not making law – which is strictly and sometimes sacredly a Parliamentary prerogative. English administrative law is still influenced in this way in that judicial decisions act as checks and balance against executive power vis-à-vis challenges against legal provisions but you do not otherwise see the English Courts striking down Acts of Parliament. It is simply because the constitutional theory of the UK does not recognise such a concept.
The only instance, to my knowledge where we can see such a departure is when the UK was a member of the European Court of Human Rights. At that time, section 4(1) of the Human Rights Act 1998, itself passed by the UK Parliament in ratifying the relevant treaty, allowed the English Courts to pass declarations of invalidity. Such declarations however, only declared Acts of Parliament incompatible with certain international human rights instruments but did not render such Parliamentary Acts or their provisions invalid or being struck down. In this sense and putting it rather bluntly, such declarations of invalidity only served, at best, as judicial suggestions to Parliament. As such, Parliament could choose not to comply and this would not render such acts legally questionable at least at the national level. The international level is a different story.
I must emphasise here that my lecture is not intended to critique or degrade Parliamentary supremacy in any way. Neither am I saying that it is a dysfunctional or inapplicable constitutional modality. My point here is to highlight very briefly how it arose in UK’s historical context and how it works in paving the path to the discussion on why constitutional supremacy, at least in the Malaysian setting, is poles apart.
The British Empire was a powerful force that slowly dismantled over the course of centuries. The UK does not conform to Baron de Montesquieu’s notion of the doctrine of separation of powers. You will notice, and I state this simply as a historical fact, that many of its former territories did not choose to adopt its form of governance but established their own political systems. Perhaps the most standout example of this is the United States of America (‘US’) that adopted Montesquieu’s version of complete separation of powers.
For the US, not only did they adopt a written constitution, they constitutionally enacted three entirely independent federal branches of government being the Executive (lead by the President), Congress, and the Supreme Court. Historically, the Americans were opposed to any form of British rule or influence that they strongly embraced notions of republicanism and direct representation in government.
For the purposes of this lecture, the most notable feature of the American Constitution is the part that pertains to the US Supreme Court. I must start by stating that while the US does not have an express supremacy clause, they have applied their constitution in that way beginning the landmark and celebrated decision of the US Supreme Court in Marbury.[2]
Reverting to the UK for a moment, I highlighted how the Courts there typically interpret legislation. They do not otherwise question their validity. That is completely not the case with the US. In light of the igniting spark that was Marbury, we can see that the Courts, or at least the US Supreme Court as the highest federal judicial authority, is by its constitution a co-equal branch of Government that can directly and is indeed, constitutionally obliged to directly check and balance the power of both Congress (Legislature) and the President (Executive). The force of the power is founded on the idea that it is the US Constitution, a written document, that is supreme and not any of these three arms of Government either individually or separately.
The facts in Marbury are not directly relevant but I will narrate the gist of it to prove my point. In that case, the issue was simply that the petitioner sought a writ of mandamus against the respondent but he did this by filing a petition in the original jurisdiction of the Supreme Court. Under the US Constitution, such a feat was not constitutionally possible but this was made possible, by an Act of Congress, the Judiciary Act of 1789, that sought to enlarge the jurisdiction of the Supreme Court to grant mandamus in its original jurisdiction. The theory of Chief Justice Marshall and his Supreme Court was quite simply that while the petitioner was on the facts entitled to mandamus, he ought not to have filed it in the Supreme Court’s original jurisdiction. The Judiciary Act of 1789 which purported to enact legislation to enlarge the Supreme Court’s legislation against the US Constitution was declared void and invalid. And thus, while Marbury was entitled to the mandamus on the facts, it was effectively deemed illegal to have granted it to him by virtue of the fact that the US Supreme Court did not have jurisdiction to grant it.
By such a ruling, the Supreme Court directly and effectively declared that the US Constitution is supreme and any law that is passed by Congress in violation of it is liable to be struck down. I can do no better than quote Chief Justice Marshall as follows:[3]
“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the Legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our Government, is entirely void; is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”.
The Marbury decision, a powerful one particularly because it was unanimous, is widely regarded throughout history as establishing judicial review. I cannot emphasise enough that Marbury was decided within the context of the US Constitution absent an express supremacy clause.
Marbury is the first rational step in my constitutional analysis because it is the first emphatic judicial decision that established a precedent for when an independent judicial arm of government may effectively annul and defy a statute passed by a democratically elected body.
The second step in my analysis and I think which presents as a more interesting scenario beyond the annulment of ordinary laws is the question whether the Judiciary can, in a constitutional supremacy, also annul, invalidate or strike down laws that seek to amend the written constitution.
The argument in the context of a legal ecosystem within which the constitution is supreme is that the constitution is always subject to amendment as authorised by its own provisions and as such, anything it dictates can be undictated by valid constitutional amendments.
This scenario is not imagined or theoretical as it actually occurred in another notable and comparable jurisdiction: India in its landmark decision of Kesavananda.[4]
Like Malaysia and the United States who were once British colonies or territories, so too was India as its Crown Jewel. As such, a large bulk of the Indian legal system is heavily derived from English law, in particular, English common law. The Indian People however drafted their own written constitution in their struggle to gain independence from their former colonial masters. Like the United States, India’s constitution is written but does not espouse an express clause on constitutional supremacy.
India was directly confronted with the situation that I presented earlier whereby the Supreme Court was called upon to decide whether constitutional amendments may be struck down. In a majority decision of 7-6, the Supreme Court created the basic structure doctrine or ‘BSD’ that boldly declared that not only must the Indian Courts strike down legislation that is inconsistent with the Indian Constitution but that it may also strike down any constitutional amendment passed by them if such amendment destroys the basic structure of the Indian Constitution.
Here, we not only have a scenario wherein ordinary laws are struck down, but a constitutional amendment no less.
Detractors of the Marbury decry the decision for effectively establishing judicial supremacy. You can then only imagine how intense the degree of criticism was when it was suggested that even laws that seek to amend the very document said to give the Judiciary those powers may be struck down.
“If the notion of constitutional supremacy and its implications remains a subject of debate in jurisdictions where there is not even an express supremacy clause, how bad then can it be in Malaysia where there is such an express declaration of supremacy?”
Consistent with historical defences against the concept, I too take the firm and unyielding position that any suggestion that constitutional supremacy is the same as judicial supremacy is either paranoia, a failure to understand constitutional supremacy, and that a defence of constitutionalism by a constitutionally anointed body cannot be imagined as judicial supremacy. If the notion of constitutional supremacy and its implications remains a subject of debate in jurisdictions where there is not even an express supremacy clause, how bad then can it be in Malaysia where there is such an express declaration of supremacy?
In developing the context for the Malaysian scene, I must first state my observation on the wholly imagined demon that is judicial supremacy.
JUDICIAL SUPREMACY
Critics of Marbury and the principles it espouses as well the BSD established in Kesavananda argue that establishing judicial review in that way effectively paves the way for judicial supremacy. Especially in relation to BSD, the argument appears to be centred on how unelected judges are given a blanket and exclusive power to determine what constitutes a basic feature and accordingly, judges can hold the elected Legislature or even the nation ransom to it.
Though there appears to be logical concern behind it, I would argue that such logic is itself principally misguided. Allow me first to address the perceived logic behind it and then I will address why I think it is misguided and unfounded.
The notion behind most if not all common law countries that have written constitutions including Malaysia, the US and India is that they are founded on democracy. The idea here is that they all at one point in their histories secured independence from the British. Therefore, concepts such as self-determination, self-reliance and self-rule are pivotal to their existence. The fact that elections take place and representatives of the People determine the law, should mean that these ‘representatives’ should have the final say of the law through Parliament or Congress.
Indeed, that is the idea in the United Kingdom. We see Parliament, as the final constitutional authority that can make and unmake laws. But, apparently, when nations such as the US, Malaysia and India secured independence, they did consider whether that model is suitable to their system of governance and chose instead to individually adopt written constitutions. What their constitutions have in common is that such documents provide the legal basis for the existence of their elected legislative bodies.
Evidently, these nations were convinced that as time flows, the Peoples of the nation also change. What should remain constant but organically evolving is their own constitution that formed the basis of their nations in the first place. The constitutions these nations developed, in fact directly imposed certain fetters on their own legislatures such that certain laws cannot be passed or that laws must be passed subject to certain minimum standard of legality including adherence to fundamental rights.
Take for instance Article 1, Section 9, Clause 3 of the US Constitution which expressly dictates that ‘No Bill of Attainder or ex post facto Law shall be passed’. A direct inclusion of such a clause in the US Constitution clearly showed their disdain for such legislation. On a wider level it displays an institutional distrust against even an elected Congress by placing a higher limit against them from ever passing such legislation, by which elected representatives can take the role of an independent adjudicatory body to convict and punish individual crimes through legislation. The fact that there is such a fetter against Congress clearly epitomises the fact that Marbury was correct to find that the US Constitution is supreme.
The UK system is not necessarily flawed. Minimally, both the US and UK constitutional systems exhort democracy. The issue with declaring Parliament supreme, is that it also adds to the fold, politics and political whims. Thus, the change of constitutional norms and conventions is governed solely by political process with no independent institutional judicial oversight or redress.
The reliance on a constitutional method that prioritises constitutional supremacy in effect renders the constitution free of political interference and that even the elected legislature is confined in its powers to legislate. Add to this equation is that the Courts and its individual judges are also public entities who answer to the public. Essentially and theoretically you have removed politics from the equation in favour of an independent body that can interpret and enforce the terms of the written constitution unimpeded by the political process.
This was exactly the notion advocated by a strong proponent of constitutional supremacy in the US. Alexander Hamilton who used the pseudonym ‘Publius’ and who authored the Federalist Papers, said as follows, in one of those papers as regards judicial supremacy in a system of constitutional supremacy:[5]
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”.
[Emphasis added]
It is a long quote indeed but it is a necessary one because its contents are profound and relevant even after 237 years his observations were made.
I postulate that Hamilton’s ideals and notions behind Federalist Papers No. 78 are thus. The legislature is an elected body and hence carries the will of the People. That said, the people do not directly control the laws that the legislature may make. In the event the legislature makes laws it is not otherwise entitled to make, the People have no way of ensuring constitutional compliance apart from exercising their political rights. Even then, there is no guarantee of compliance due to various factors such as political will and the fear of missing re-election. It is in that sense that the Constitution recognises only one body, the Judiciary, as the ultimate bulwark that insulates the constitution, and by extension, the people, from legislative tyranny. Courts are therefore not undemocratic when they simply undertake to perform and do perform their constitutionally assigned duty.
Naturally, in a system where the constitution is supreme and it is only the Courts that have the final say over the interpretation of its provisions, the Judiciary will be perceived as a more powerful and influential institution as opposed to say, a system like the UK where such powers are never really displayed and where in fact, the existence of such powers are even doubted.
Brutus was one person who heavily criticised Hamilton to the extent that the latter’s comments appeared to align with what eventually became law later in Marbury. In igniting fears against judicial supremacy in a system where Courts could strike down laws passed by Congress that violated the US Constitution, Brutus said this:[6]
“The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of power of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment.”.
Brutus’ comments did not escape Hamilton unanswered as he had the following to say.
First, he acknowledged the argument that conferring judicial power on the Courts in the way the drafters proposed does create the impression of judicial supremacy.[7] Hamilton categorised Brutus’ fears as ‘made up altogether of false reasoning upon misconceived fact’ because in Hamilton’s view, because if it was Congress and not the Courts that had the power, then Congress would in effect be making itself supreme over the Constitution. In my view, Hamilton took the strong view that the power to interpret the written constitution must reside with the Courts in line with separation of powers and concomitant with the powers of the Courts to mould relief.
Hamilton went on to write in his defence of a federal judiciary with the exclusive power to interpret the written constitution.[8] In summary, he argued that a completely independent Judiciary’s power to interpret laws based on the Constitution’s “spirit” is not unique to the federal plan but a general feature of any limited government. He then strongly refuted the idea of the judiciary being part of the legislature, contending that legislators would lack the necessary impartiality (having made the laws), appropriate judicial tenure, and specialized legal expertise. Furthermore, their inherent susceptibility to political factionalism would corrupt the administration of justice.
In essence, Hamilton concluded that constitutional problems occasioned by political people cannot always be resolved through the political process or by politicians themselves. There is a strong need for an independent body to adjudicate on constitutional issues.
I believe that having read out the exchange that took place between Hamilton and Brutus and Hamilton’s strong responses should be sufficient to highlight to you the argument that suggests that the exclusive role of an independent Judiciary in the final interpretation of its written constitution does not breed judicial supremacy but ensure constitutional supremacy.
Closer to home, our own Tun Suffian effectively and indirectly echoed all the views of Hamilton in his following short but powerful observations, and I quote:[9]
“If Parliament is not supreme and its laws may be invalidated by the courts, are the courts then supreme? The answer is yes and no – the courts are supreme in some ways but not in others. They are supreme in the sense that they have the right – indeed the duty – to invalidate Acts enacted outside Parliament’s power, or Acts that are within Parliament’s power but inconsistent with the Constitution. But they are not supreme as regards Acts that are within Parliament’s power and are consistent with the Constitution. The court’s duty then is quite clear; they must apply the law in those Acts without question, irrespective of their private view and prejudice.”.
What is clear therefore is that the written constitution, having established prior to Parliament and actually being the basis of Parliament’s existence, stands above it. However, the Federal Constitution is not self-executing and in cases where the validity of laws or their legal provisions are called into question, there is no other institution apart from the entirely independent Judiciary that can resolve their validity. And in cases where a case for invalidity is successfully made on the high threshold that it takes to establish it, then the Courts are dutybound by Article 4(1) to strike down that law.
Having noted all my observations up to this point, I now move to discuss the case of Malaysia to the extent that it is relevant to the topic.
THE CASE OF MALAYSIA
What sets Malaysia apart from most other commonwealth jurisdictions that attained independence before it is that our Federal Constitution contains an express supremacy clause, the one I read out earlier: Article 4(1). What then are the implications of it, considering that jurisdictions that do not have such clause such as the US and India have also determined their constitutions supreme? Surely Malaysia, having such a clause must present a livelier constitutional environment.
While theoretically that may be so, I would say that Malaysia’s constitutional scene did not achieve full bloom until the year 2017, that is at least 60 years after independence. We must also consider that Article 4(1) remains intact and in pristine form since the very inception of the Federation of Malaya and later Malaysia. You would therefore be correct to think that the full realisation of Article 4(1) only 60 years after its inception might have been too long and you might be correct.
The transcendent shift in 2017 that I am referring to is the unanimous decision of the Federal Court in a case called Semenyih Jaya.[10] In Malaysia, like most other jurisdictions, we have an Act of Parliament called the Land Acquisition Act 1960 which allows the Government to forcibly acquire land subject to them making adequate compensation to the person from whom the land was forcibly acquired. Naturally, in many cases the aggrieved party challenged the adequacy of the compensation.
The issue in Semenyih Jaya was that a provision of the Land Acquisition Act 1960 stipulated that any High Court Judge who shall determine the adequacy of compensation for acquisition shall be assisted by two lay and essentially non-judicial assessors and that the determination of those assessors shall bind the High Court Judge. Those challenging the provision argued that the High Court was, by that provision, effectively rendered into a rubberstamp in violation of the doctrine of separation of powers. After a lengthy analysis of the applicable constitutional provisions, the Federal Court held that the impugned provision of the Land Acquisition Act 1960 was unconstitutional and struck it down.
Under the terms of the Federal Constitution as is accepted everywhere else in the Commonwealth, the Judiciary is an entirely independent organ of Government tasked with making judicial determinations. Any person can therefore appreciate the clear and obvious outcome in Semenyih Jaya in that by confining the High Court to external adjudicators and removing all source of judicial determination, it unduly restricts judicial power and renders that provision of the Land Acquisition Act 1960 unconstitutional. As you can probably guess, the issue in Semenyih Jaya was therefore not simply just the legal validity of the provision of the Land Acquisition Act 1960 but something much larger. And to illustrate that, I must step away from that decision and highlight the bigger problem that plagued the Courts at that time.
Prior to the events that occurred in 1988, Article 121(1) of the Federal Constitution which deals with the establishment of the Superior Courts in Malaysia, read, in relevant part, as follows:
“… the judicial power of the Federation shall be vested in the two High Courts … and the High Courts … shall have such jurisdiction and powers as may be conferred by or under federal law.”.
In 1988, Parliament passed the Constitutional (Amendment) Act 1988 [Act A704] to among other things, amend Article 121(1). The new provision which subsists to this day, reads as follows:
“There shall be two High Courts of co-ordinate jurisdiction and status… and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”.
This amendment did two things. First, it removed the words ‘the judicial power of the Federation shall be vested’ from the body of Article 121(1). Second, it was worded such that all jurisdiction and powers of the High Court and the inferior courts shall be as may be conferred by or under federal law. Nothing much happened in the many years that followed the amendment not at least until the decision of the Federal Court in a case called Kok Wah Kuan.[11]
The issue in that case concerned section 97 of the Child Act 2001. In effect, the provision stipulates that any child convicted of an offence punishable with death shall, instead of being punished with death, be detained at the pleasure of the YDPA. The provision was challenged on the basis that it violated the doctrine of separation of powers for having removed the Judiciary’s power to determine the measure of sentence; and with the YDPA being the head of the Executive branch of Government, it meant that the measure of the sentence was instead to be determined by a non-judicial body, namely the Executive arm of Government.
Now, what is interesting is that the Federal Court unanimously held that the provision was constitutional and valid. However, the Court was split on its reasons. The majority judgment, which was delivered by Justice Abdul Hamid Mohamad, ruled that by the amendment effected in 1988, Parliament had in fact removed any vesting of judicial power and emphatically determined that all powers and jurisdiction the Court shall have, are as strictly determined by Parliament. He further reasoned that since there was no express statement of the doctrine of separation of powers in the Federal Constitution, then there could be no argument of its violation in the provision that removes the power of the Court to determine the measure of a sentence, to a non-judicial body.
As you can probably tell, the Federal Court’s majority decision was heavily criticised for converting Malaysia into a Parliamentary supremacy. It is hard to argue with the critics because the criticism is substantively correct. Reading the amended Article 121(1) the way the majority in Kok Wah Kuan did, in effect, disregards the foundation of the constitution in its creation of three distinct arms of Government and further treats the Malaysian Parliament like the Parliament of UK to the extent that the Courts are obliged to uphold any law passed by Parliament as valid because they are subordinate to it.
If we apply Kok Wah Kuan’s interpretation of the Federal Constitution, then the provision of the Land Acquisition Act 1960 ought to have been upheld as valid. Because if there is no express mention of separation of powers in the Federal Constitution and the Courts are bound to Parliament’s dictates, then it did not matter that a High Court in any land acquisition compensation hearing was just a rubberstamp for the lay and non-judicial assessors. Clearly, the Federal Court saw the flaw in this and found that it could no longer accept the proposition in Kok Wah Kuan – which now leads me to the bigger picture that was targeted in that case.
In Semenyih Jaya, the parties challenging the Land Acquisition Act 1960 effectively sought to obliterate the bad precedent that was established in Kok Wah Kuan. For this, they resorted to the Indian BSD established in Kesavananda for the proposition that there are basic features in the Federal Constitution that cannot be amended even by Parliament, and in the context of Semenyih Jaya case, it was argued that judicial power and separation of powers were such basic features. Accordingly, it was suggested that the 1988 amendment was bad in law and the Courts were at liberty to strike down the impugned Land Acquisition Act 1960 provision.
The Federal Court in Semenyih Jaya referred to Article 4(1) of the Federal Constitution and held that the Indian BSD is applicable in Malaysian law. The Court then interpreted the amended Article 121(1) and in my reading of it, held that the majority in Kok Wah Kuan misconstrued the nature and effect of the amendment. The Federal Court held that while the BSD was effectively applicable in Malaysia, there was no need to apply it because construing Article 121(1) on a whole, the judicial power of the Federation remains vested in the Judiciary and the Judiciary is not subordinate to Parliament in light of Article 4(1). Semenyih Jaya then spelt the end of Kok Wah Kuan and propelled our constitutional law in the right direction.
Semenyih Jaya was followed by two other important constitutional decisions that upheld constitutional supremacy and continued to reinforce the existence of the BSD in Malaysia. These were the decisions in Indira Gandhi,[12] and Alma Nudo.[13] Together, Semenyih Jaya, Indira Gandhi and Alma Nudo are known as the ‘Trilogy of Cases’.
However, as is the case with most things that develop, they develop slowly and not without bumps along the way. And up to the point that the Trilogy of Cases were decided, there was still much lingering doubt regarding the applicability of the BSD in Malaysia.
In particular, in many other constitutional challenges that surfaced after Alma Nudo, the Government in defending itself against constitutional challenges, continued to make attempts to revive Kok Wah Kuan. In all such challenges, arguments were repeatedly made to the extent that the BSD is inapplicable in Malaysia and that we are wrong to import a foreign doctrine into Malaysia from a completely different jurisdictional context.
Let me be clear in that I think there is slight merit to that argument. For one, the primary basis upon which the Indian BSD was formulated is that the Indian Constitution has a preamble. That preamble highlights among other things India’s status as a republic, and a secular State. The Federal Constitution in Malaysia on the other hand does not have a preamble from which we can derive basic features. But as you can guess, that is not the end of the argument or the case for a similar doctrine in Malaysia.
In later cases, the Federal Court was divided on the application of the BSD in Malaysia. One such example was the case in Maria Chin.[14] Later, the Federal Court was again divided in cases such as Rovin Joty,[15] and Zaidi Kanapiah.[16] In both cases, the majorities rejected in one way or another the application of the BSD in Malaysia and seemed to have departed from clear and irrefutable precedent in the Trilogy of Cases.
That was short-lived as later in the landmark decisions of Dhinesh[17] and Nivesh,[18] the Federal Court held that while the BSD is not applicable in Malaysia, a version of it called the doctrine of constitutional supremacy remains law in Malaysia.
Nivesh is particularly relevant as like Rovin Joty and Zaidi Kanapiah, it concerned the interpretation of section 4 of the Prevention of Crime Act 1959 (‘POCA 1959’). In essence, section 4 provided that so long as a Magistrate in a remand hearing was presented with certificates signed by certain parties from the Executive arm of government, then the Magistrate was bound to order the detention of the detainee. These cases, including Maria Chin, also concerned in one way or another, statutory provisions that restricted judicial review in the form of ouster clauses.
Again, attempt was made by relying on Kok Wah Kuan and related cases to contend that the Judiciary was properly restricted by Parliament from reviewing the legality of the legislation and acts performed in accordance with the legislation. In both Dhinesh and Nivesh, the Federal Court unanimously upheld that the minority judgments in Maria Chin and Zaidi Kanapiah are correct and that those provisions were null and void.
By these latest decisions, the position of our constitutional law stands, that is, that Parliament cannot enact laws that violate the basic features of the Federal Constitution and that the Courts cannot be restricted from their inherent judicial powers of review against Acts of Parliament or any Executive acts or omissions because of Article 4(1) of the Federal Constitution. In this assessment, the Courts can even strike down constitutional amendments that violate the basic feature of the Federal Constitution.
In arriving at this conclusion, the Federal Court re-emphasised the position established in the Trilogy of Cases that the 1988 constitutional amendment did not remove judicial power and that this only occurred because of the misinterpretation of the amended Article 121(1) in Kok Wah Kuan. While the doctrine of constitutional supremacy, which was held to be applicable in place of the Indian BSD was affirmatively recognised, the Federal Court did not have to resort to it to strike down the constitutional amendment to Article 121(1) having corrected the misinterpretation that arose in Kok Wah Kuan.
In relation to constitutional supremacy, these cases ruled that we need not resort to a foreign concept because the essence of the BSD, unlike the Indian Constitution which had to imply it into their written constitution, in Malaysia it is in-built.
The problem, as I see it, was that all this while, the case was made both for and against the importation and adoption of the BSD into our law. In fact, the struggle to have Kesavananda imported into Malaysia long predates Semenyih Jaya to cases that were decided in the late 1970-s such as in Loh Kooi Choon,[19] and Phang Chin Hock.[20]
I need not delve into those cases as Semenyih Jaya and later Zaidi Kanapiah dealt with them. Suffice to state that the current cases now hold that the essence of the BSD is applicable in Malaysia without having to rely on Indian authorities such as Kesavananda. Since India and Malaysia have similar written constitutions and legal histories, it is not surprising then that we should have a constitutional concept that is similar to theirs though more properly grounded, in our case, on solid constitutional text and theory.
Our methodology is simply this. Article 4(1) starts with the phrase: ‘this Constitution is the supreme law of the Federation’. Then, the Federal Constitution goes on to establish, in its many provisions, the Houses of Parliament and establishes its legislative powers in the Lists that I mentioned earlier. As such, Parliament was created by the Federal Constitution and its powers are circumscribed by it.
Article 159 then caters for Parliament’s specific powers to amend the Federal Constitution in accordance with prerequisite majorities and consents that Parliament must obtain. However, in wording that power, Article 159(1) uses these words: ‘… the provisions of this Constitution may be amended by federal law.’
In Article 4(1), the Federal Constitution refers to itself as ‘this Constitution’ while in 159(1) it allows amendments to its ‘provisions’ and that too by federal law. Article 4(1) then goes on to say that any law ‘passed’ after Merdeka Day that is inconsistent with the Federal Constitution is to the extent of the inconsistency void. This means that when Parliament passes a federal law to amend the provisions of the Constitution (which is narrower in meaning to ‘this Constitution’), then such a law is also capable of scrutiny and capable of being struck down by the Courts.
This is just a plain reading of these provisions for what they say. And when you read them this way, they collectively mean that the Constitution is larger than the sum of its parts, and if we consider that it was the social contract that was concluded with the conditions to form Malaya and later Malaysia, there are parts of it that cannot be destroyed even by constitutional amendment if that amendment defaced the basic tenets of what Malaysia is today.
You can then appreciate that this is not the Indian BSD. It is our own doctrine of constitutional supremacy ingrained in Article 4(1). We have this express supremacy provision that should give us everything in line with the powers of judicial review established in Marbury and the essence of the BSD which India had to read into its constitution. We are debating its existence when it is included into the very words of our Federal Constitution.
This is therefore a measured balance. It does not mean that Parliament cannot ever amend the Federal Constitution. For they have done so in many stellar cases such as the recent constitutional amendment that equalised citizenship rights by allowing mothers of children born overseas with foreigner fathers, to pass down their Malaysian citizenship to their children. Previously the right to pass down citizenship to children born overseas was only conferred to Malaysian fathers who married non-Malaysian mothers.
The existence of the doctrine of constitutional supremacy enshrined in Article 4(1) simply means that Parliament cannot unmake the Malaysian State by for example removing the judicial arm of Government, removing Islam as the religion of the Federation, abolishing the monarchies or other amendments that transform Malaysia to something other than what was intended by the social contract.
CONCLUSION
The purpose of this lecture, up to now, while in some part it was to share with you my knowledge on the subject, it was more intended to provoke thought and intrigue. In the time that I had today, I shared with you severely truncated narratives on the various moving parts that make up Malaysian constitutional law with the hopes that you will continue to make your own inquiries into this pivotal subject.
You might wonder why there has been much resistance to the reliance on the doctrine of constitutional supremacy in Malaysia. The answer is because people fear what they do not understand. Some say that Courts have too much power in that they should not be deciding what does and does not constitute the Federal Constitution’s basic features. Yet, it is the same Courts that settle all manner of disputes including whether ordinary legislation is valid. Why then should the Courts not be tasked in light of the doctrine of separation of powers, to determine matters of the highest constitutional importance in the manner they were constitutionally entrusted to do?
In the earlier, days, I would postulate that this is because most if not all of our Judges were English-trained and returned here to practise as lawyers and later serve as Judges. Once on the bench, they then developed our constitutional and administrative laws in the way and manner English Judges would.
One example of this is the way ouster clauses are interpreted. In England, the Courts followed initially Anisminic v Foreign Compensation Commission [1969] 2 AC 147 to determine whether an error was made within or beyond jurisdiction to in turn determine whether a legislatively imposed ouster clause could be bypassed. This was developed further by the Supreme Court in Privacy International, and to illustrate how these decisions are premised on Parliamentary supremacy, I quote to you the following words of Lord Kerr:[21]
“… Judicial review can only be excluded by “the most clear and explicit words”. If Parliament has failed to make its intention sufficiently clear, it is not for us to stretch the words used beyond their natural meaning.”.
This again, shows deference by the English Courts to Parliament as the supreme authority. In Malaysia, beginning in Maria Chin as affirmed in Dhinesh and Nivesh, we need not take such a deferential approach because Parliament here, unlike in the UK, cannot exclude judicial power including its primary device of judicial review. The Judiciary here, like that of the US and India by design cannot be subordinate to Parliament. Ouster clauses in this example and to the extent that they seek to achieve subordination are void under Article 4(1) of the FC. As such, the stark difference between Parliamentary versus constitutional supremacy should be obvious to any person, even with elementary understanding of constitutional law.
Yet, some people, even those who are supposed to be of high learning and understanding continue to accuse me and the current Judiciary of inciting judicial supremacy, and importing foreign and inapplicable case law such as Kesavananda for that purpose. We are being criticised for doing our job and for upholding the Federal Constitution.
I will not bend to such lame pressures and insinuations as I remain loyal to only one cause
Like I have said in the past, I will not bend to such lame pressures and insinuations as I remain loyal to only one cause: and that is maintaining my oath of office as a Judge to preserve, protect and defend the Constitution to the best of my abilities.
I can only hope that the current and younger generation that has taken the time to listen to this lecture will continue to uphold our sacred constitutional law and the Rule of Law.
Thank you.
[1] Ah Thian v Government of Malaysia [1976] 2 MLJ 112, at p. 113.
[2] Marbury v Madison [1803] 1 Cranch 137.
[3] Marbury v Madison [1803] 1 Cranch 137, at p. 178.
[4] Kesavananda Bharati v State of Kerala & Anor AIR 1973 SC 1461; (1973) 4 SCC 225.
[5] Federalist Paper No. 78 (The Judiciary Department) (25 May 1788).
[6] Shlomo Slonim, ‘Federalist No. 78 and Brutus’ Neglected Theses on Judicial Supremacy’ [2006] 23(7) Constitutional Commentary 7, at p. 14.
[7] Federalist Paper No. 80 (The Judiciary Continued) (25 June 1788). He said:
“The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.”. [Emphasis added]
[8] Ibid, as follows:
“In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.”. [Emphasis added]
[9] An Introduction to the Constitution of Malaysia (3rd edition, Pacifica Publications, 2007), at p. 18.
[10] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561.
[11] Kok Wah Kuan v Public Prosecutor [2008] 1 MLJ 1.
[12] Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 3 CLJ 145.
[13] Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780.
[14] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579.
[15] Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah& Ors and other appeals [2021] 2 MLJ 822.
[16] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759.
[17] Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356.
[18] Nivesh Nair a/l Mohan v Dato’ Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [Case No: (05(HC)-7-01/2020(W)), decided on 25 April 2022].
[19] Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.
[20] Phang Chin Hock v PP [980] 1 MLJ 70.
[21] R (on the application of Privacy International) v Investigatory Powers Tribunal And Others [2019] UKSC 22, at [111].
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