1. Constitutional Supremacy.

2. The English Philosophy Of Legal

Positivism.
3. The Doctrine Of Strict Separation Of
Powers.
4. Fundamental Rights.
5. Substantive Limits On Police Power.
6. Constitutional Law.
7. Power Of Executive.
8. Judicial Powers.
m Over the last three decades, our courts
have shown extreme reluctance to
invalidate parliamentary legislation on
grounds of constitutionality.
m This can be seen in Article 4(1) of Federal
Constitution which stated that M


   
     



        



   M

 
 
   


   
m ðn our view, as Malaysia has its own
written constitution which made by
Parliament based on Federal
Constitution, our courts should followed
the legislation which is not contravene
with our Constitution.
m This will show that our country has
supremacy of the Constitution.
m Case: Malaysian Bar & Anor v
Government of Malaysia [1986] 2 MLJ
225

CONCLUSðON: Therefore, any judgments

made by our courts should not be
contravened with our Constitution
because Federal Constitutional is the
supremacy law in our country.
m Legal Positivism means a system of philosophy
based on things that can be seen or proved
rather than on speculation.
m Under this philosophy, judges were prohibited
from examining the morality, justice and
reasonableness of law.
m ðn addition, it promotes a literal and narrow
logical interpretation of the law.
m The English philosophy of Legal Positivism also
identifies law with state action and denies legal
validity to custom and morality.
m Moreover, it discourages a purpose-oriented,
moralistic or historical approach.
m The burden to answer the question of the
reasonableness of law lies on the part of
the Parliament.
m Therefore, the parliament has to debate
and decide what law to be established.
m Generally, English authorities have been
found to be more persuasive than ðndian
authorities, even though the Malaysian
Constitution is nearer in content and
structure to the ðndian constitution than
the British.
m The doctrines of strict separation of power
which propounded by French philosopher
did not apply in Malaysia.
m ðn this doctrine the judges often rely to justify
their refusal to review executive and
legislative acts .
m However Malaysia did apply such doctrine
but Malaysia constitution did not have that
strict separation of that three branches but
the main purpose is to seek for balance
among the organs of government.
m After discussion, we agreed that the
Malaysia has not practise strict
separation of power as Montesquieu
propounded.
m There are fusion in the branch of
executive and legislative in government.
m A member of Parliament can be a
member in the branch of executive at
the same time.
m May somehow occurred overlapping of
powers.
m However, since the executive and
legislative is in the same body in Malaysia ,
they could check and control the power of
each other while the judiciary is separated
from the two branches which it stand at its
own.
m Nobody can interrupt the decision of the
court itself.
m The court is given the power to control both
legislative and executive in order to
maintain the balance of these three
bodies.
m ðt also makes sure that no overlap of power
occurs in these three bodies.
 The courts have viewed that there are
some progressions upon the area of
fundamental right of liberties in Malaysia.
 Even though they have showed their
tenderness in property and religious
freedom.
 But in order to fulfill the need of stability, order and
security, the courts must be strict and give way in the
personal liberty.
 Therefore, many fundamental rights have been
interpreted in narrow and pedantic way by the courts.
m Personal liberty in article 5 of FC means
liberty relating to or concerning the
person or body of the individual.
m Constitution is the supreme law of the
land.
m The court shall not challenge the
constitutionality of Malaysian
constitution, including article 5.
m There is freedom, but may be limited.
m 0ovt. v. Loh Wai Kong [1979] 2 MLJ 33
m Ooi Ah Phua v. Officer-in-charge [1975] 2 MLJ
198

CONCLUSðON: ðn some fundamental

rights, the court shall interpret the rights
narrowly as to uphold justice and
harmony and to fulfill the need for
stability, order and security.
m ð do not agree with his opinion that the
police have gone beyond their power to
exercise and enforce their rights.
m There are reasons why such right could
not be granted to the detainees at that
particular moment.
m Case : ÿ
 
  ÿ

 [1977] 2 MLJ 116

  Conclusion :
The reason of detention under Section 117
Criminal Procedure Code (C.P.C) is for the
purpose of completing investigations by the
police. Therefore, such right (Article 5(3) of the
Constitution) starts right from the day of his
arrest but it cannot be exercised immediately
after arrest Ú it impedes police investigation or
the administration of justice.
m ðn Constitutional Law, great reliance is
placed on the decisions of English courts.
m This preferences for English decision may
have been justified in the early years
after Merdeka.
m Until now, Malaysian court may still
applied English Law by virtue of Section 3
and 5 of the Civil Law Act 1956.
m Not necessary need to refer to English court
decisions but can refer to law available in
other countries as long as it is suit to our local
circumstances.
m ðt was back than Malaysia had been colonised
by British, it does not mean that we have to
refer to the English law if there are any lacuna
in our local legislation.
m ðn the situation where there is a lacuna in the
local legislation, we should apply others·
countries law which is more effective if it is suits
to our local circumstances.
m Daram Singh v MHEDN (1969) 2 MLJ 129.
m Basu·s Commentary on Constitution of
ðndia.
m ðbrahim J.

 Conclusion: Thus, whenever necessary,

our country should refers to the law
that is available in another country.
m 1.ðt was stated that executive body which
at the central government have
immeasurable range discretionary powers.
2.But these vast array powers remain non-
justiciable which means these powers have
been misused or abusive of powers happen
in the executive body.
3.Thus, the author concluded this state of
affairs is not conducive to the forceful
application rule of law
m Thus, ð am partially agree with the author·s
statement where he states that there was
the abuse of power committed in the
Executive body because they are being
given a vast array of discretionary power.
m However, it is also undeniable that in
Malaysia, we have a legal system that
provides sufficient check and balance and
there was no dominant by agencies in
enforcing the law.
in the case of the former
Malacca State Executive
Councilor Datuk Sahar Arpan
CONCLUSðON: Corruption
happened among the
Executive Councillors which
being investigated by Anti
Corruption Agency
m Nowadays, the scope of the ðSA detetion
was not as strict as before.
m ðn addition, Administrative law has been
greatly widened.
m Moreover, the procedural rights of public
servant have been strengthened.
m Apart from all the criticism stated by the
author towards the role of the judiciary,
the judicial body still exercise its power
effectively in certain situation.
m To conclude, we can say that the
perceptions of judges are independent,
impartial and fearless arbiters in disputes
between the citizen and the state have
been strengthened. ðn addition, the
judicial power has been given the
authority to be independent without fear
and favour of the executive power.
Lastly, the judiciary was in a great
position that is the body which protect
the Constitution from being abused.