Constitutional Supremacy v Parliamentary Supremacy

CONSTITUTIONAL SUPREMACY v PARLIAMENTARY SOVERIGNTY The term ‘supremacy’ indicates the highest authority or rank and could even be known as being in an all-powerful position. The word ‘constitution’ refers to a codified and uncodified body of rules governing the people as well as the government. 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 the law-making freedom of parliamentary sovereignty abandons to the requirements of a constitution as the constitution is supreme. This is because the Parliament’s authority is derived from the constitution. It could be inferred that all laws passed has to be in line with the constitution. If a passed law is deemed as to be in contrast with any provision in the constitution then it could be taken to court and challenged as unconstitutional. While parliamentary sovereignty place the highest position of the government to parliament has a wide range of power, including the power of legislating law and deciding policy. The conventional view of the doctrine of parliamentary supremacy is basically that only parliament has the liberty and freedom to create and invalidate any law as it wishes and that no other institution can challenge that right, no matter how absurd, unjust or unreasonable the law is. There are many differences between both of the system namely the highest law applied, application of judicial review. For the first aspect, states that apply supremacy of constitution uphold their written and codified constitution as the highest law of the land. The constitution shall prevail over any other law applied in the state. Under the Federal Constitution of Malaysia, Article 4(1) states that, the constitution is the supreme law in the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its inconsistency. As in the case of PP v Dato Yap Peng, the accused was charged with criminal breach of trust. The deputy public prosecutor tendered a certificate issued by the public prosecutor to transfer the case to the High Court under Section 418A of the Criminal Procedure Code. Before the High Court, accused argued that Section 418A Nelfi Amiera Mizan Multimedia University

of the CPC violates Article 121(1) (before 1988) and thus unconstitutional. The majority of held that, the Section 418A of CPC contravene the Article 121(1) of the Federal 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 nonjudicial 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 and executive power, the court still upheld the supreme Constitution. To further strengthen, in the case of City Council of George Town v Government of Penang, the subject argued that the laws made by the Government of Penang, which are the City Council of George Town Order 1966 and Municipal (Amendment) Enactment 1966 contravene to the Local Government Election Act 1960. Court held that, the laws were null and void as referred to Article 75 of the Federal Constitution which states that any state law that is inconsistent with Federal law shall be void up to its inconsistency and federal law shall prevail. In contrast of the supremacy of constitution, sovereignty of the parliament had different views on the highest law applied.

States that apply the sovereignty of

Parliament placed legislative assemblies as the highest authority to make or repeal law as they think fit and it is supreme over the judicial branch. For instance, the highest source of authority in United Kingdom is the Parliament and the Acts of Parliament. 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 any law as without restriction. As referred to the His Majesty’s Declaration of Abdication Act 1936, it can be seen that parliament had pass act to alter the succession of a throne. As King Edward VIII desired to marry his lover, Wallis Simpson- a divorcee, he had faced strong opposition from the Government of United Kingdom and the church as it may cause constitutional crisis. Due to his marriage to Wallis Simpson, the Parliament had passed the act to remove his throne and His Majesty shall be terminated to be King, His Majesty’s descendants shall not have any rights, title or interest to the succession. Nelfi Amiera Mizan Multimedia University

Besides that, the sovereignty of Parliament can be seen in the case of Burmah Oil Company v Lord Advocate. In 1942, British army has intentionally destroyed the oil instillation in Rangoon by the order of royal prerogative as to prevent it from being conquered by the Japanese. The court held that, the sum of compensation shall be payable by Crown for the destruction caused as the destruction does not occur during actual battle. Directly after, the Parliament passed a War Damages Act 1956 which prevents other from obtaining compensation and it acted 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 State Law and invalidate them if it is found to be unconstitutional. In the case of Ah Thian v Government of Malaysia, subject was charged under Section 372 and 379 of Penal Code, for offences of robbery and armed robbery with attempt to cause death. However, he may be also be charged under Section 5 of the Firearms Act 1971 which carries the penalties of imprisonment for life and whipping not less than 6 strokes. The accused argued that the Firearms Act is ultra vires to the Article 8 of the Federal Constitution that provides equal protection of law. Courts had exercise the judicial review towards the case and held that The Firearms Act 1971contravened the constitution. However, the states that apply sovereignty of Parliament do not exercise the doctrine of judicial review. This statement is further fortify by the description of A.V Dicey which states, once Parliament have legislated, no one outside Parliament can enquire 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 Parliament provided that the land acquired by the old railway company to place the trail shall be return to the adjoining land owners if the trails stop its service. In 1968, Parliament passed the British Railway Act that removes the rights to revert. The plaintiff, the owner of the adjoining land argued that the act of Parliament should be invalid as it was passed through a faulty Parliamentary procedure. The court held that, the parliament shall not be questioned in any other in any matter. Nelfi Amiera Mizan Multimedia University

Besides that, constitutional supremacy as a written constitution is that it is said to be rigid. With the writing of the constitution, a set of guidelines were set up which makes it more stable. There is also a record of how the governing body runs the country which is easier for the citizen to read and understand it. The law also cannot be changed as it is supreme. In addition, it is accessibility to law, which it is easier to educate the citizen and the citizen will be easily aware of the law as it is relatively detailed and leading to certainty. Due to accessibility to law, the human rights of the citizen will be protected and strongly emphasized. On the other hand, the advantage of parliamentary sovereignty as an uncodified constitution is that, it is flexible and extremely adaptable. This means that it can be amended easily to reflect changes in developing society as it is not entrenched. The Parliament can easily make and pass new laws. Lastly, in the context of amending procedure, having the constitution as a supreme law is the law cannot simply be amended as the constitution is seem to be too rigid. In order to amend the law, it must passes through several procedural stages as stated in the constitution. For instance, as Malaysia one of the countries that have the constitution as the higher law, the process to enact the act of parliament consists of two stages which are pre-parliamentary stage and parliamentary stage. In pre-parliamentary stage a government will make a proposal relating to the enactment of an act and they will discuss with all government authority involved. Then, the parliamentary draft person will make the proposal become a Bill. Once after the cabinet has been accepted the proposal, the Bill is ready to be introduce to the Parliament. While in parliamentary stage, the Bill will go through few stages which involved debates on the general principles followed by a vote then the Bill will be presented to the Yang di-Pertuan Agong for his assent before the Act comes into force. Therefore, it will take a lot of times and procedure to amend the act. However, for the Parliamentary sovereignty the act is simply amended as the constitution is seems to be too flexible. The concept of the parliamentary sovereignty is it makes Parliament the supreme legal authority in the country. Therefore, there is no need to go through the stages like the constitutional supremacy to amend the act. For example, the in the United Kingdom Constitution it Nelfi Amiera Mizan Multimedia University

is simple to amend by passing an Act of Parliament because the constitution is said to be unwritten and it is because of the Parliamentary sovereignty to pass an act to amend the constitution. Only the Acts of Parliament are supreme because to become an Act of the Parliament there is a long process. Besides that, it can be seen in the His Majesty’s Declaration of Abdication Act 1936 which Edward VIII had signed declaration of abdication on 10 December 1936 but he still remained as the King until giving Royal Assent to His Majesty’s Declaration of Abdication Act on 11 December. The act was passed through the British Houses of Parliament in one day with no amendments.

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