AH THIAN v. GOVERNMENT OF MALAYSIA

[1976] 1 LNS 3 Legal Network Series
AH THIAN v. GOVERNMENT OF MALAYSIA

FEDERAL COURT, KUALA LUMPUR
SUFFIAN LP
[CRIMINAL APPLICATION NO 3 OF 1976]
28 MAY 1976
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

sections 392 and 397 of the Penal Code, an offence punishable under
section 5 of the Firearms (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 Firearms (Increased Penalties)

Act 37 of 1971 as amended by the Firearms (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 March 30, 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
1
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.
2
But the power to declare any law invalid on ground (1) is subject to
three restrictions prescribed by the Constitution.
First, clause (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, clause (4) of article 4 provides that proceedings of the type

mentioned in (a) above may not be commenced by an individual without
leave of a judge of the Federal Court and the Federation is entitled to
3
be a party to such proceedings, and so is any State that would or might

be a party to proceedings brought for the same purpose under type (b)
or (c) above. This is to ensure that no adverse ruling is made without
giving the relevant government an opportunity to argue to the contrary.
Thirdly, clause (1) of article 128 provides that only the Federal Court
has jurisdiction to determine whether a law made by Parliament or by
a State legislature is invalid on the ground that it relates to a matter
with respect to which the relevant legislature has no power to make law.
This jurisdiction is exclusive to the Federal Court, no other court has
it. This is to ensure that a law may be declared invalid on this very
serious ground only after full consideration by the highest court in the
land.
The applicant wants to attack the validity of the Firearms (Increased

Penalties) Act not on the ground that it relates to a matter with respect
to which Parliament has no power to make law. In my judgment, this
Act deals with criminal law and the administration of justice, both
matters with respect to which Parliament has power to make law (see
item 4 of List I in the Ninth Schedule to the Constitution). The applicant
says that the Act is invalid because it is inconsistent with the
Constitution, i.e. on ground (2) set out in paragraph 9 above. Therefore
clause (4) of article 4 and clause (1) of article 128 do not apply and the
point may be raised in the ordinary way in the course of submission,
and determined in the High Court, without reference to the Federal
Court, and there is no need for leave of a judge of the Federal Court.
True the learned judge has power under Section 48 of the Courts of
Judicature Act 1964 (L.M. Act 91) to stay the proceedings before him
and refer a matter like this to the Federal Court. He has not however
4
done so in this case (this is an application by the accused). But in any

event matters like this as a matter of convenience and to save the parties
time and expense are best dealt with by him in the ordinary way, and
the aggrieved party should be left to appeal in the ordinary way to the
Federal Court.
If the learned judge had done that here, the applicant and his co-accused
would have been acquitted or convicted by now. As it is, in 1976 they
are still being tried for an offence which they are alleged to have
committedon December 26, 1974.
My order on the application is that this matter be remitted back for

continuation of trial by the High Court.
Order accordingly.
Counsel:
For the applicant - Karpal Singh; M/s Karpal Singh & Co
For the respondent - TS Nathan (Deputy Public Prosecutor)

AH THIAN v. GOVERNMENT OF MALAYSIA

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[1976] 1 LNS 3 Legal Network Series

AH THIAN v. GOVERNMENT OF MALAYSIA

This application is before me in my capacity as a judge of the Federal

The applicant was charged with committing armed robbery under

If convicted he is liable to imprisonment for his natural life and with

The applicant's counsel argued that the Firearms (Increased Penalties)

Article 8(1) reads–

The doctrine of the supremacy of Parliament does not apply in

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

(1) in the case of Federal written law, because it relates to a

(3) in the case of State written law, because it is inconsistent

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

(b) if the law was made by Parliament, in proceedings between

(c) if the law was made by a State legislature, in proceedings

Secondly, clause (4) of article 4 provides that proceedings of the type

be a party to such proceedings, and so is any State that would or might

The applicant wants to attack the validity of the Firearms (Increased

done so in this case (this is an application by the accused). But in any

My order on the application is that this matter be remitted back for

For the applicant - Karpal Singh; M/s Karpal Singh & Co

For the respondent - TS Nathan (Deputy Public Prosecutor)

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