Constitutional supremacy, basic structure and constitutional oath doctrine

Ali Mohamed, Ashgar Ali and Yaakob, Adnan and Ahmad, Muhamad Hassan (2022) Constitutional supremacy, basic structure and constitutional oath doctrine. In: Constitutional Law in Malaysia. LexisNexis Malaysia Sdn Bhd, Bangsar South City, Kuala Lumpur, pp. 77-94. ISBN 9789672701637

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Abstract

The supremacy of the Federal Constitution is set out in Article 4(1) and had also been affirmed by the Federal Court in Ah Thian v. Government of Malaysia [1976] 2 MLJ 112. This Article also declares that any legislation passed after Merdeka Day (Independence Day) that is conflicting with the Federal Constitution is void to the extent of the inconsistency. The effect of laws made before Merdeka Day is governed by Article 162(6) of the Constitution. The three branches of government namely the Legislature, Executive, and Judiciary, are required to function in accordance with the restriction set by the Constitution. The Parliament and State Legislatures, for example, can only make laws following the limit set by the Constitution and any laws which are inconsistent with the Constitution shall be declared void to the extent of the inconsistency. The Judiciary is the mechanism through which the Federal Constitution’s supremacy is safeguarded. The jurisdiction to determine whether a law made by Parliament or the Legislature of the State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, is conferred on the Federal Court vide Article 128(1) of the Federal Constitution. Likewise, pursuant to Article 75 of the Federal Constitution, if any state law is inconsistent with federal law the federal law shall prevail and the state law shall be void to the extent of the inconsistency. Having said the above, this chapter discusses the doctrine of constitutional supremacy as opposed to the Parliamentary supremacy in the United Kingdom and the judicial power of the court to preserve, protect and defend the Constitution.

Item Type:	Book Chapter
Uncontrolled Keywords:	Constitutional Supremacy, Basic Structure, Constitutional Oath Doctrine.
Subjects:	K Law > K3165 Constitutional Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User:	Dr. Muhamad Hassan Ahmad
Date Deposited:	13 Mar 2023 12:48
Last Modified:	13 Mar 2023 12:48
URI:	http://irep.iium.edu.my/id/eprint/103960

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