AH THIAN v. GOVERNMENT OF MALAYSIA
AH THIAN v. GOVERNMENT OF MALAYSIA
SUFFIAN LP
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.
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
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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.
(2) in the case of both Federal and State written law, because it
is inconsistent with the Constitution, see article 4(1); or
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.
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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:–
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.
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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.
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
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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.
Order accordingly.
Counsel: