Etong Armand B. (2021) THE PRINCIPLE OF SUPREMACY OF THE CONSTITUTION AND CHALLENGES OF FUNDAMENTAL FREEDOMS IN THE MALAYSIAN FEDERAL CONSTITUTION, University of Malaya.docx
Creators: name: Armand Brice, Etong
Publisher: name: figshare
Year: 2021
Subjects: subject: 180102 Access to Justice
subject: FOS: Law
subject: 180103 Administrative Law
subject: 180106 Comparative Law
subject: 180108 Constitutional Law

description: In Malaysia, the Federal Constitution is the supreme law of the land which came into force in 1957. Federal Constitution is the fundamental law of the land and a kind of ‘higher law’ which is used to measure the validity of all other laws. Any law inconsistent with the Federal Constitution may be challenged in court. This is application of the doctrine of sovereignty or supremacy of the Constitution. According to Suffian LP in <b>Ah Thian v Government of Malaysia</b> <b>[1976]1MLRA 410</b> doctrine of Parliament supremacy is not applicable in Malaysia because there is a written law or Constitution[1] and not a written but uncodified constitution in the United Kingdom where the supremacy of Parliament is applicable so, the power of Parliament and State Legislatures in Malaysia is restricted by Federal Constitution and they cannot make any law as they please. Hence, it is quite obvious that Parliament and State Legislatures are undoubtedly subject to provision of Federal Constitution. All the other institutions created by Federal Constitution and delivering their powers from it are subject to its provisions as well. The supremacy of the Federal Constitution is set out in Article 4(1), and 162(6) and section 73 of the Malaysia Act 1963. The purpose of this qualitative analysis is to examine and critically explore the extent to which the Courts have been faithful and lawful to ensure and maintain the Supremacy of Constitution. One the one hand, this paper will focus on the area of freedom of speech and association to see how well or badly the constitutional supremacy has been applied and respected, on the other hand, this paper shall examine the freedom of religion and equality before the law to determine the strengths and weaknesses of the doctrine of the Constitutional Supremacy in Malaysia. This study shall use a doctrinal or qualitative research method backed up by case laws, constitutional provisions, and statutes or Acts as primary sources of information and articles, books, journals and reports as secondary sources of references in order to better interpret and clarify the distinction between the doctrine of sovereignty or supremacy of the Constitution in the Malaysian context and the principle of parliamentary sovereignty, in Great Britain, which broadly means that parliament can enact and repeal any law as it wants and that the courts cannot overrule the laws made by Parliament. This principle has major implications for the way in which laws are made and interpreted, and indeed for the whole legal system including the conception of a parliamentary democratic for the protection and promotion of human rights, rule of law, more importantly for the strengthening of the principle of equality before the law and equal treatment before the law for all. <br> [1] In <b>Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526</b> the Federal Court conclusively declared that judicial power of the court resides in the judiciary and no one else. (Separation of powers) The independence of the judiciary is central to the rule of law