Constitution
The judiciary and the constitution
by Professor Shad Saleem Faruqi
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Constitution
The judiciary and the constitution by Professor Shad Saleem Faruqi |
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INTRODUCTION IN THE DAYS BEFORE Merdeka, when the edifice of the Constitution of the Federation of Malaya was being constructed, three alternative constitutional models were available for adoption by the drafters of Malaya's document of destiny. First, the British model of an unwritten Constitution with a supreme parliament vested with unlimited legislative competence and unhindered by judicial review. Second, the United States' model of a written Constitution with a limited legislature and an entrenched chapter on fundamental freedoms vigorously guarded by the courts. Third, the Indian model with a written and supreme Constitution and a chapter on fundamental rights but with a parliament vested with extensive constitutional powers to curtail fundamental rights on the grounds permitted by the basic charter. The drafters of the Malayan Constitution chose the third model. A written Constitution was adopted as the fundamental and supreme law of the land but with extensive powers conferred on the federal parliament to regulate human rights and to bypass some of the guarantees of the basic law in times of subversion or emergency. The adoption of a written and supreme Constitution as the chart and compass, the sail and anchor of a nation's legal endeavours has a number of distinct implications. THE HIGHEST LAW Implicit in the concept of a Constitution is that of a higher law that has superiority over the institutions it creates. The Constitution takes precedence over all other laws. In most states where there is a written Constitution, a distinction is made between the law of the Constitution and ordinary law. In case of a conflict between the two, the Constitution prevails. |
| Article 4(1): The
rule of constitutional supremacy is clearly stated in
Article 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." The
consequences of Article 4(1) are far-reaching. "Supreme law": The implication of these words is that the norms of the Constitution have higher legal validity than any other rule in society whether enacted by the federal parliament or the state assemblies, whether of a primary or secondary status (Note 1), whether a peace-time or an emergency law, whether of secular or theocratic nature. One must, however, take note that in legal philosophy the theory of constitutional supremacy is open to many challenges. "Natural lawyers" put forward a vision of "higher law" that overrides enacted law. In popular perceptions too religion and morality attract higher loyalty. But in a country with a supreme Constitution all courts and administrators are required to interpret legal, moral and social norms in the light of the Constitution. "Federation": This refers to the State of Malaysia and not just to the federal government. "Any law": These words must be understood in the light of the definition clause in Article 160(2). "Law" refers to written law, the common law and recognized custom. "Written law" includes the Federal Constitution, the Constitution of the states, federal and state legislation and federal and state subsidiary legislation, in case of a clash between the Federal Constitution and any other law, the Federal Constitution will prevail over State Constitutions, Acts of Parliament, federal subsidiary legislation, State Enactments, State subsidiary legislation, common law and custom. But a validly enacted constitutional amendment cannot be included in Article 4's definition of 'law'. A constitutional amendment is, from the date of its enactment, an integral part of the Constitution. A part cannot be held to be in conflict with the whole. Article 4(1) that laws inconsistent with the Constitution are void applies only to ordinary laws and not to constitutive or organic laws passed under Article 159,161E and 2(b). As Wan Suleiman FJ said in Loh Kooi Choon v Government [1977] 2 MLJ 187: "Like any other Bill, a Constitution amending Bill would become law on being assented to by the Yang di-Pertuan Agong, and... thenceforth becomes part of the Constitution, becomes integrated therein. The situation cannot arise where it can ever be said to be inconsistent with the Constitution" (Note 2.) "After Merdeka Day": Article 4(1) is meant to apply to laws only after August 31, 1957. Laws passed before Merdeka Day that are inconsistent with the Constitution cannot be invalidated under Article 4(1): Chia Khin Sze v MB Selangor [1958] MLJ 105 (Note 3.) "To the extent of the inconsistency": A legislative measure may have many parts and only some parts may be in conflict with the supreme Constitution. A court is not obliged to invalidate the entire law. It may separate or sever the valid from the invalid and declare only the offending part or parts to be void. This is the doctrine of severability. It is applied in most cases of judicial review e.g. in PP v DatukHarun Idris [1976] 2 MLJ 116; Malaysian Bar [1986] 2 MLJ 225 and Dato' Yap Peng v PP [1987] 2 MLJ 311. But once in a while the statute is found so wanting that it is invalidated in its entirety. In Surinder Singh Kanda [1962] 1 MLJ 169 the pre-Medeka Police Ordinance was so full of significant clashes with the new Constitution that it was declared null and void. |
| Article 162(6):
Constitutional supremacy in Article 4(1) is
strengthened by Article 162(6) which lays down that any court or
tribunal applying the provisions of any pre-Merdeka law may apply it
with such modification as may be necessary to bring it into accord with
the Constitution. The courts are known to have applied Article 162(6)
in Surinder Singh Kanda [1962] 1 MLJ 169, Aminah [1968] 1 MLJ 92; Assa
Singh [1969] 2 MLJ 30; and Sagong Tasi [2005] 6 MLJ 289. Differences between Articles 4(1) and 162(6): Article 4(1) deals with post-Merdeka law; Article 162(6) deals with pre-Merdeka law. Under Article 4(1) if a law is clashing with the Constitution, courts have no choice but to declare it (or a part of it) null and void. Under Article 4(1) courts cannot modify the law or fill gaps in it to incorporate the Constitution's promises. Under Article 162(6) and (7) courts have a wider choice. They may amend, adapt or repeal an offending piece of legislation. JUDICIAL REVIEW Constitutional supremacy would ring hollow unless it is enforced. Articles 4(3), 4(4), 162(6), 128(1) and 128(2) confer power on the superior courts to determine the constitutional validity of federal and state laws and to invalidate them on the ground of unconstitutionality. In the fifty years since Merdeka there have been four successful challenges in the courts on constitutional grounds against pre-Merdeka legislation and fourteen successful challenges against post-Merdeka legislation. Of these eighteen decisions, six were reversed on appeal (Note 4). Two decisions were rendered ineffective by amendments to the Constitution (Note 5). That leaves only ten instances when judicial review took hold and left a lasting legal impact (Note 6). The number is indeed small but it illustrates the theory of constitutional supremacy and denies the omnipotence of Parliament and of the State Assemblies. Chia Khin Sze: In Chia Khin Sze v MB Selangor [1958] MLJ 105 it was held that the fundamental liberty granted by Article 5(1) did not apply to arrests made under the pre-Merdeka Restricted Residence Ordinance. This unsatisfactory decision was in blissful disregard of Article162(6) and was fortunately given a decent burial in subsequent cases like Aminah v Supt. Of Prisons [1968] 1 MLJ 92. Surinder: In Surinder Singh Kanda v Government of Malaya [1962] 1 MLJ 169, a police inspector was on July 7th 1958 (nearly a year after Merdeka) dismissed by the Commissioner of Police under powers given to the Commissioner by the pre-Merdeka Police Ordinance 1952 (the Ordinance). The issues before the court were, firstly, whether on July 7th 1958, the Commissioner had any power to dismiss Surinder or whether that power had transferred on August 31, 1957 to the newly created Police Force Commission (Commission) under Article 144 of the Constitution? Secondly, whether the Constitution was violated by section 45(1) of the Ordinance which empowered the Commissioner to summarily dismiss an Inspector. Article 135 of the Constitution (as it stood then) stated that "No member of any of the services mentioned shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank". Was the pre-Merdeka Ordinance 1952 a valid law despite its |
| conflict with
Article 135(1)?
Thirdly, even if the Ordinance conflicted with Article 135(1), was the
Ordinance saved by Article 144(1)? Article 144(1) states that "subject
to the provisions of any existing law... it shall be the duty of the
Commission to... exercise disciplinary control..." Fourthly, were the
disciplinary proceedings conducted in accordance with Article 135(2)
that requires that "No member of such a service as aforesaid shall be
dismissed or reduced in rank without being given a reasonable
opportunity of being heard". It was held that the words "any existing law" in Article 144(1) mean "any valid existing law". If there is a conflict between the pre-Merdeka Ordinance and the Constitution, the Ordinance is not valid and must give way to the supreme Constitution... It must be modified so as to accord with the supreme Constitution's Articles 162(1) and (6). Under the Constitution's Article 135(1), no one could dismiss who could not appoint. With effect from Merdeka Day, the power of appointment belongs to the Commission under Article 144(1). The Commissioner could not, therefore, dismiss because he could not appoint the Appellant. The Commissioner was an authority subordinate to the Commission. Article 135(2) incorporates into the Constitution the natural justice principle of audi alteram partem. On the facts of this case the report of the Board of Inquiry was made known to the adjudicator but not to Surinder. This means that the Appellant did not know what evidence had been given and what statements had been made affecting him. "The judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to (the) prejudice (of the accused)... The risk of it is enough." The significance of this case to constitutional law is that the case affirms the supremacy of the Constitution over pre-Merdeka law. It affirms the power of the courts under Article 162(6) to deal with unconstitutional pre-Merdeka law in one of two ways. First, to modify it, if it can be modified, in order to make it fall in line with the Constitution. Second, to invalidate it. The case affirms the rule that power must be exercised in accordance with procedure. The power to dismiss or reduce in rank in Article 135(1) must be exercised in accordance with the requirement of hearing laid down in Article 135(2) and in accordance with the common law rule of audi alteram partem. Aminah: In Aminah v Supt. of Prisons [1968] 1 MLJ 92 (High Court), it was held that Article 5 applies to arrests made under any law. Chia Khin Sze v MB Selangor [1958] MLJ 105 was dissented from. The pre-Merdeka Restricted Residence Enactment is subject to Article 5. But on the facts of the case, it was held that the requirements of Article 5(3) had been complied with. Assa: In Assa Singh v MB Johore [1969] 2 MLJ 30 (Federal Court), the Restricted Residence Enactment being a law relating to public security did not conflict with Article 9. But as the Enactment did not have provisions similar to Article 5(3) and 5(4), the requirements of these Articles must be read into the provisions of the Enactment under Article 162(6). |
| Samy Vellu: In Datuk
Seri S Samy Vellu v S Nadarajah [2000] 4 MLJ 696,
the issue was whether sections 133-136 of the Criminal Procedure Code
(dealing with the power of the Magistrate to take cognizance of an
offence) and section 380 (allowing private prosecution) are
inconsistent with Article 145(3) of the Constitution? The court held
that Article 145(3) does not confer a monopoly of power on the
Attorney-General and, therefore, private prosecutions are not
unconstitutional. Sagong Tasi: In Kerajaan Negeri Selangor v Sagong Tasi [2005] 6 MLJ 289, it was held that the Aborigines People Act 1954 must be brought into conformity with Article 13(2) of the Constitution requiring compensation. City Council of George Town: In City Council of George Town v Government of Penang [1967] 1 MLJ 169 (Federal Court), the City Council of George Town (Transfer of Functions) Order 1966 and the Municipal (Amendment) (Penang) Enactment 1966 were void by virtue of Article 75 of the Constitution on the ground that they were inconsistent with the Local Government Elections Act 1960 of the Federation. The decision implies that any conflict between a State law and a federal law must be resolved in favour of the latter. With all due respect, this is an oversimplification. On matters in the State List, a State law will prevail over a federal law unless the federal law is saved by Article 76(4) - federal power to legislate for States in certain cases - or under Article 150 conferring emergency powers on the federation. Datuk Harun Idris: In PP v Datuk Haji Harun Idris [1976] 2 MLJ 116, [1977] 1 MLJ 180, section 418A Criminal Procedure Code, which allows the public prosecutor to transfer cases from one court to another, was held by the High Court to violate Article 8. But on appeal it was held that section 418A CPC is saved because of Article 145(3) which grants power to the Attorney-General to transfer cases from one court to another: [1977] 2 MLJ 155. Selangor Pilots: In Selangor Pilots Association v Government of Malaysia [1974] 2 MLJ 123 (High Court) and [1975] 2 MLJ 66 (Federal Court), section 35A of the Port Authorities Amendment Act depriving the appellants of their right to carry on pilotage business was held to amount to compulsory acquisition of property and, therefore, Article 13(2) on right to compensation was violated. But the decision was reversed on appeal to the Privy Council: [1977] 1 MLJ 133. Teh Cheng Poh: In Teh Cheng Poh v PP [1980] AC 458, the facts were that on 15 May 1969, as a result of race riots, the Yang di-Pertuan Agong proclaimed a state of emergency under Article 150(1). As there was no Parliament in session (the previous Parliament had been dissolved for a General Election), the Yang di-Pertuan Agong used his powers under Article 150 to issue several Emergency Ordinances having the force of law. One of the Ordinances was the Emergency (Essential Powers) Ordinance No. 1 of 1969. One feature of the Ordinance No.1/1969 was that in it the Yang di-Pertuan Agong delegated power to himself to make Regulations for ensuring safety, security etc. |
| On February 20, 1971
Parliament was re-convened. Emergency was still in
operation. Acting under powers delegated to him by himself, the Yang
di-Pertuan Agong in 1975 framed the Essential Security Cases
Regulations 1975 (ESCAR). Teh Cheng Poh was charged with a security
offence under the ISA, and tried under ESCAR. He was convicted and
sentenced to death. His lawyers challenged the constitutionality of
ESCAR. The main issue before the Privy Council was whether the Yang
di-Pertuan Agong can continue to make law after Parliament comes back
to session. Specifically the issue was whether the Yang di-Pertuan
Agong can make new law by way of subsidiary legislation when Parliament
has already come to session? Another issue was whether emergency law
making power can be delegated by Parliament to the executive and by the
Yang di-Pertuan Agong to himself and to other members of the executive? It was held that if a House of Parliament is re-convened, the Yang di-Pertuan Agong's power to enact new Ordinances comes to an end. From the point of time when one House or both Houses convene, the law making power of the nation must be exercised by Parliament and not the executive. The Yang di-Pertuan Agong cannot get around this constitutional ban by continuing to issue executive legislation by way of subsidiary legislation. That amounts to doing indirectly what the Yang di-Pertuan Agong is not allowed to do directly. Malaysian Bar: In Malaysian Bar v Govt, of Malaysia [1986] 2 MLJ 225 one limb of section 46A of the Legal Profession Act 1976 was held by the High Court to violate the rule of equality before the law under Article 8. The High Court decision was overruled by the Supreme Court. See [1987] 2 MLJ 165. Menon: In Menon v Government of Malaysia [1987] 2 MLJ 642, a section of the Pensions (Amendment) Act which discriminated against non-resident pensioners was held by the High Court to violate Article 8. The decision was reversed on appeal: [1990] 1 MLJ 277. Yap Peng: In PP v Dato' Yap Peng [1987] 2 MLJ 311, section 418A CPC, which allowed the Attorney-General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under (the then) Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the AG. Mamat Daud: In Mamat Bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, the petitioners had acted as bilal, khatib and imam at a Friday prayer without being so appointed under the Terengganu Administration of Islamic Law Enactment. They were charged with an offence under section 298A of the Penal Code (which is federal law) for doing acts which were likely to cause disunity or prejudice harmony among persons professing the religion of Islam. The basic issue before the court was as to who should have enacted section 298A - the Federal Parliament or the State Assembly concerned? The Federal Parliament has general power to make legislation under Article 11(5) relating to public order, |
| public health and
morality, and
specific powers under Schedule 9 List I Item 4 in relation to criminal
law. The State Assemblies have general power under Article 11(4) to
control the propagating of doctrines and beliefs among persons
professing the religion of Islam, and specific power in relation to
matters of Islamic law as outlined in Schedule 9 List II, Item 1. Among
other things these relate to matters of Islamic law, mosques, creation
and punishment of offences by persons professing the religion of Islam
against precepts of that religion except in regard to matters included
in the Federal List. A crucial issue was whether section 298A was a law
on public order (in federal hands) or a law about Islamic offences (in
state hands). If the wording of the law is such that it could fall in
both jurisdictions, what rules of interpretation the courts must adopt
in order to decide in which jurisdiction the law falls for purposes of
determining its validity? A final question was whether leave of the
Federal Court was required before action for declaration can be
commenced? It was held that, examining section 298A as a whole, it is, in its pith and substance, a law on the subject matter of religion with respect to which only the States have power to legislate under Articles 74 and 77 of the Constitution. Section 298A is a piece of "colourable legislation" in that it pretends to be a legislation on 'public order' when in pith and substance it is about Islamic religious offences. As the case involves a question about the legislative powers of the federal and state legislatures, leave of the Federal Court is required under Article 4(3) to apply for a declaration. The significance of the case is that this case illustrates that in Malaysia there is no parliamentary supremacy. The Constitution is supreme. The powers of the Federal Parliament and of the State Assemblies are derived from and limited by the Constitution. Neither the federal nor the state legislatures can make any laws they please: Ah Thian v Government of Malaysia [1976] 2 MLJ 112. The validity of laws can be challenged on the ground that the law infringes the separation of powers between Parliament and the State Assemblies as demarcated by the Ninth Schedule. This case is a stirring example of the judicial power of constitutional review under Article 128. A challenge on the ground that Parliament or a State Assembly has trespassed into each other's jurisdiction must be by way of a declaration with the permission of the Federal Court under Article 4(4). This case is an important example of how rules of interpretation are employed to understand the meaning and scope of laws. The case highlighted the "doctrine of pith and substance" and the doctrine of "colourable legislation". Where the language of a piece of legislation is broad or vague and the legislation could fall into one or more category, the court will not interpret the law literally. It will interpret it purposively. The object, purpose and design of the impugned legislation will be examined. The Court will examine the substance and not the form or outward appearance of the impugned legislation. The object of the pith and substance doctrine is two-fold. First, to ensure against colourable (i.e. mala fide or malicious or fraudulent) exercise of legislative power whereby the legislature pretends to do one thing but is actually doing another. Second, to ensure that the division of legislative power is not too rigid. A power exercised for one purpose may incidentally or indirectly touch upon another purpose. The court will not strike down the law if at its core, at its pith and substance it is within the permitted purpose. In this case, however, the majority felt that the law was a colourable exercise of power. Parliament was pretending to pass a law on public order but was actually enacting something on Islamic offences - something the State Assemblies are empowered to do. |
| As a comment it needs
to be stated that the case seems to proceed on
the wrong assumption that everything about Islamic religion is in the
State List. In fact the State Assemblies' powers over Islam are
confined to topics in Item 1 of List II of Schedule 9. Crimes against
public order are in federal hands even if they involve Muslims. As the
minority rightly observed, section 298A was directed not only at
Muslims but at all persons who insulted others on religious grounds or
caused disharmony. The minority view is preferable that section 298A was in its pith and substance a law on public order and therefore within federal jurisdiction. Nordin Salleh: In Nordin Salleh v Dewan Undangan Negeri Kelantan [1992] 1 MLJ 697, an amendment to the Kelantan Constitution requiring an Assemblyman who "crosses the floor" to vacate his seat and seek re-election was held to violate the fundamental right of association in Article 10. Tun Mustapha: In Tun Dato Haji Mustapha v Legislative Assembly of Sabah [1993] 1 MLJ 26, an amendment to the Sabah Constitution on the lines of the Kelantan Constitution was similarly held to violate Article 10. Faridah Begum: In Faridah Begum v Sultan ofPahang [1996] 1 MLJ 617, it was suggested (obiter) that if the amendments to the Federal Constitution through Articles 181-183 sought to permit a foreigner to sue a Malaysian sovereign, such an amendment would be unconstitutional under Article 155. Was the court reviving the argument it had rejected in earlier cases that the "basic structure" of the Constitution cannot be amended? Nguari Chan: In Nguang Chan v PP [2001] 2 MLJ 129 CA, section 28(3) of the Trade Description Act 1972 was held to be ultra vires Article 145(3) of the Constitution. Danaharta: In Kekatong v Danaharta Urus Sdn Bhd [2003] 3 MLJ 1 the Court of Appeal held that Section 72 which prohibited a court from granting an injunction against Danaharta was a violation of Article 8 and unconstitutional. The decision was overturned by the Federal Court on the ground that section 72 applied to all persons who were similarly situated and whose assets and liabilities had been acquired by Danaharta: Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257. Kok Wah Kuan: In Kok Wah Kuan v PP [2007] 5 MLJ 174 - a case involving a juvenile murderer - the Court of Appeal invalidated section 97(2) of the Child Act on the ground that it violates the constitutional principle of separation of powers between the executive and the judiciary. The impugned section allows the sentencing of convicted juveniles to be at the pleasure of the King and not on the order of the court concerned. This, the court held, was a legislatively sanctioned usurpation by the executive of a judicial function. The Federal Court overruled the Court of Appeal. Jurisdiction & locus standi: In Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at 113, Suffian LP summed up the principles of legislative review. Under our Constitution, the courts have power to declare a written law invalid on one of the following three grounds: 1. If 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 Parliament has no power to make law, and in the case of State written law, because it relates to a matter with respect to which the State legislature has no power to make law: Article 74. 2. If either Federal or State written law is inconsistent with the Constitution e.g. if it violates fundamental rights: Article 4(1). 3. If a State written law is inconsistent with a Federal law: Article 75.(Note 7) The court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any superior or inferior court. The proceeding can be started by the Government or by a private individual subject to the rule of locus standi. But the power to declare any law invalid on ground (1) - violation of the federal-state division of powers - is subject to several restrictions prescribed in the Constitution. ** The challenge must lie by way of a proceeding for a declaration that the law is invalid on that ground: Article 4(3). ** The proceeding may be brought by an individual against another individual or against the Government or by a Government against an individual. This is implicit in Article 4(4). ** If the law was made by Parliament, the proceeding must be between the Federation and the Government of one or more States. If the law was made by a State legislature, the proceeding must be between the Federation and the Government of that State. But whoever brings the proceeding must specifically ask for a declaration that the law impugned is invalid on that ground: Article 4(3). ** If an individual commences the proceeding, he may not do so without leave of a judge of the Federal Court: Article 4(4). ** The Federation is entitled to be a party to such proceedings, and so is any State that would or might be a party to proceedings brought for the same purpose: Article 4(4). This is to ensure that no adverse ruling is made without giving the relevant government an opportunity to argue to the contrary. ** Only the Federal Court has jurisdiction to determine whether a law made by Parliament or by a State legislature is invalid on the ground that it relates to a matter with respect to which the relevant legislature has no power to make law: Article 128(1). This jurisdiction is exclusive to the Federal Court, no other court has it. This is to ensure that a law may be declared invalid on this very serious ground only after full consideration by the highest court in the land. A LIMITED PARLIAMENT The implications of Articles 4(1), 128 and 162(6) are that in Malaysia all persons and authorities including Parliament are subject to the provisions of the Constitution. Their powers are limited and defined and are to be found in the Constitution itself. Any unconstitutionality is liable to be challenged and invalidated in a court of law. The doctrine of the supremacy of Parliament is not part of Malaysian legal theory. In Ah Thian v. Government of Malaysia [1976] 2 MLJ 112, Lord President Tun Suffian affirmed the supremacy of the Constitution in unmistakable language: "The doctrine of the supremacy of parliament does not apply in Malaysia. |
| Here we have a
written Constitution. The
power of parliament and the state legislatures in Malaysia is limited
by the Constitution and they cannot make any law they please." There are two types of limits on Parliament's powers. First, substantive limits or limits relating to subject matter. Parliament is not permitted to commit a jurisdictional error: Nguang Chang [2001] 2 MLJ 129. It cannot restrict fundamental rights save to the extent allowed by the basic charter: Aminah [1968] 1 MLJ 92; Assa Singh [1969] 2 MLJ 30; Kerajaan Negeri Selangor v Sagong Tasi [2005] 6 MLJ 298; PP v Datuk Haji Harun Idris [1976] 2 MLJ 116; Selangor Pilots Association [[1974] 2 MLJ 123; Malaysian Bar [1986] 2 MLJ 225; Menon [1987] 2 MLJ 642; Nordin Salleh [1992] 1 MLJ 697; Tun Mustapha [1993] 1 MLJ 26 and Danaharta [2004] 2 MLJ 257. It is forbidden from violating the federal-state division of competence: Mamat Daud [1988] 1 MLJ 119. It cannot encroach on the judicial function: PP v Yap Peng [1987] 2 MLJ 311(Note 8); Kok Wah Kuan v PP [2007] 5 MLJ 174.(Note 9) In times of subversion its power to suspend fundamental rights is limited to the rights in Articles 5, 9, 10 and 13 (Note 10). In times of emergency, Parliament must not flout the limits imposed by Article 150(6A). Second, there are procedural limits about how power must be exercised. In performing its legislative function, Parliament is obliged to comply with the procedural requirements of Articles 2(b), 38(4), 66, 68,159 and 161E.# from a paper read at the recent Bar law conference Dr Shad Saleem Faruqi is Professor of Law, Universiti Teknologi MARA, Shah Alam Go to the top |
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