SLIDES FOR CONSTITUTIONAL LAW:

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CONSTITUTIONAL SUPREMACY v PARLIAMENTARY SOVERIGNTY

The term supremacy indicates the highest authority or rank and could even
be known as being in an allpowerful position. The word constitution refers to a
codified and uncodified body of rules governing the people as well as thegovernment.
On the other hand, the word parliament indicates the national
representative body having the law-making powers within the state.Constitutional
supremacy refers to the system of government in which thelaw-making freedom of
parliamentary sovereignty abandons to the requirements of a
constitution as the constitution is supreme. This is because the Parliaments
authority is derived from the constitution. It could be inferred that all laws passed hasto
be in line with the constitution. If a passed law is deemed as to be in contrast withany
provision in the constitution then it could be taken to court and challenged
asunconstitutional.While parliamentary sovereignty place the highest position of the
governmentto parliament has a wide range of power, including the power of legislating
law anddeciding policy. The conventional view of the doctrine of parliamentary
supremacy isbasically that only parliament has the liberty and freedom to create and
invalidateany law as it wishes and that no other institution can challenge that right, no
matterhow absurd, unjust or unreasonable the law is.There are many differences
between both of the system namely the highestlaw applied, application of judicial
review.For the first aspect, states that apply supremacy of constitution uphold
theirwritten and codified constitution as the highest law of the land. The constitution
shallprevail over any other law applied in the state. Under the Federal Constitution
ofMalaysia, Article 4(1) states that, the constitution is the supreme law in theFederation
and any law passed after Merdeka Day which is inconsistent with theConstitution shall
be void, to the extent of its inconsistency. As in the case of
PP v Dato Yap Peng
, the accused was charged with criminalbreach of trust. The deputy public prosecutor
tendered a certificate issued by thepublic prosecutor to transfer the case to the High
Court under Section 418A of theCriminal Procedure Code. Before the High Court,
accused argued that Section 418A
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of the CPC violates Article 121(1) (before 1988) and thus unconstitutional. Themajority
of held that, the Section 418A of CPC contravene the Article 121(1) of theFederal
Constitution as the power to transfer cases is falls under the jurisdiction
of judicial power. The Section 418A of CPC had obviously giving power to a non- judicia
l authority (deputy public prosecutor) and by that it had violates Article 121(1)of the
Federal Constitution. Even though the case had involved both legislative andexecutive

power, the court still upheld the supreme Constitution.To further strengthen, in the case
of
City Council of George Town vGovernment of Penang
, the subject argued that the laws made by the Governmentof Penang, which are the
City Council of George Town Order 1966 and Municipal(Amendment) Enactment 1966
contravene to the Local Government Election Act1960. Court held that, the laws were
null and void as referred to Article 75 of theFederal Constitution which states that any
state law that is inconsistent with Federallaw shall be void up to its inconsistency and
federal law shall prevail.In contrast of the supremacy of constitution, sovereignty of the
parliament haddifferent views on the highest law applied. States that apply
the sovereignty ofParliament placed legislative assemblies as the highest authority to
make or repeallaw as they think fit and it is supreme over the judicial branch. For
instance, thehighest source of authority in United Kingdom is the Parliament and the
Acts ofParliament.The doctrine is usually referred to the description by Professor A.V
Diecy,which states

Parliament is legally competent to legislate upon any subject matter.By his description,
it reflects that parliament is very powerful where it may pass anylaw as without
restriction. As referred to the
His Majestys Declaration of Abdication Act 1936
, it can beseen that parliament had pass act to alter the succession of a throne. As
KingEdward VIII desired to marry his lover, Wallis Simpson- a divorcee, he had
facedstrong opposition from the Government of United Kingdom and the church as it
maycause constitutional crisis. Due to his marriage to Wallis Simpson, the
Parliamenthad passed the act to remove his throne and His Majesty shall be terminated
to be
King, His Majestys descendants shall not have any rights, title or interest to
the
succession.

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Besides that, the sovereignty of Parliament can be seen in the case of
Burmah Oil Company v Lord Advocate
. In 1942, British army has intentionallydestroyed the oil instillation in Rangoon by the
order of royal prerogative as toprevent it from being conquered by the Japanese. The
court held that, the sum ofcompensation shall be payable by Crown for the destruction
caused as thedestruction does not occur during actual battle. Directly after, the
Parliament passeda War Damages Act 1956 which prevents other from obtaining
compensation and itacted retrospectively and stop the payment towards the Burmah Oil
Company.On the second aspect, states that applied supremacy of
constitution(Malaysia) had a power for judicial review. In the Federal Constitution of
Article 128,it gives the superior courts power to determine on the validity of Federal and
StateLaw and invalidate them if it is found to be unconstitutional.In the case of
Ah Thian v Government of Malaysia

, subject was chargedunder Section 372 and 379 of Penal Code, for offences of robbery
and armedrobbery with attempt to cause death. However, he may be also be charged
underSection 5 of the Firearms Act 1971 which carries the penalties of imprisonment
forlife and whipping not less than 6 strokes. The accused argued that the Firearms Actis
ultra vires to the Article 8 of the Federal Constitution that provides equal protectionof
law. Courts had exercise the judicial review towards the case and held that TheFirearms
Act 1971contravened the constitution.However, the states that apply sovereignty of
Parliament do not exercise thedoctrine of judicial review. This statement is further fortify
by the description of A.VDicey which states, once Parliament have legislated, no one
outside Parliament canenquire into the validity of the legislation including the exercise of
judicial review.In the case of Pickins v British Railway Board, before 1968, Acts of
Parliamentprovided that the land acquired by the old railway company to place the trail
shall bereturn to the adjoining land owners if the trails stop its service. In 1968,
Parliamentpassed the British Railway Act that removes the rights to revert. The plaintiff,
theowner of the adjoining land argued that the act of Parliament should be invalid as
itwas passed through a faulty Parliamentary procedure. The court held that,
theparliament shall not be questioned in any other in any matter.