JUDGMENT

Suffian LP:

This application is before me in my capacity as a Judge of the Federal Court.

The applicant was charged with committing armed robbery under ss. 392 and 397 of the Penal Code, an offence punishable under s. 5 of the Firemans (Increased Penalties) Act 37 of 1971 as amended.

If convicted he is liable to imprisonment for his natural life and with whipping with no less than six strokes.

Also charged with him was one Ooi Chooi Toh who figured in the case of Ooi Ah Phua v. OCCID Kedah/Perlis [1975] 2 MLJ 198.

The applicant's Counsel argued that the Firemans (Increased Penalties) Act 37 of 1971 as amended by the Firemans (Increased Penalties) (Amendment) Act A256 of 1974 is "ultra vires the Federal Constitution as it contravenes article 8(1) of the Constitution and is therefore void."

Article 8(1) reads -

All persons are equal before the law and entitled to the equal protection of the law.

On 30 March 1976, at the close of the case for the prosecution, Counsel for the applicant applied for an adjournment to enable him to obtain the leave of a Judge of the Federal Court to start proceedings for a declaration that the Act is void for the reason already stated. The application was granted, hence this application before me. It is said that the application is made under article 4(4) of the Constitution.

The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.

Under our Constitution written law may be invalid on one of these grounds:

(1) in the case of Federal written law, because it relates to a matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter which respect to which the State legislature has no power to make law, article 74; or

(2) in the case of both Federal and State written law, because it is inconsistent with the Constitution, see article 4(1); or

(3) in the case of State written law, because it is inconsistent with Federal law, article 75.

The Court has power to declare any Federal or State law invalid on any of the above three grounds.

The Court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any Court in the land and in any proceeding whether it be started by Government or by an individual.

But the power to declare any law invalid on ground (1) is subject to three restrictions prescribed by the Constitution.

First, cl (3) of article 4 provides that the validity of any law made by Parliament or by a State legislature may not be questioned on the ground that it makes provision with respect to any matter with respect to which the relevant legislature has no power to make law, except in three types of proceedings as follows:-

(a) in proceedings for a declaration that the law is invalid on that ground; or

(b) if the law was made by Parliament, in proceedings between the Federation and one or more states; or

(c) if the law was made by a State legislature, in proceedings between the Federation and that State.

It will be noted that proceedings of types (b) and (c) are brought by Government, and there is no need for any one to ask specifically for a declaration that the law is invalid on the ground that it relates to a matter with respect to which the relevant legislature has no power to make law. The point can be raised in the course of submission in the ordinary way. Proceedings of type (a) may however be brought by an individual against another individual or against Government or by Government against an individual, but whoever brings the proceedings must specifically ask for a declaration that the law impugned is invalid on that ground.

Secondly, cl (4) of article 4 provides that proceedings of the type mentioned in (a) above may not be commenced by an indivi