PHANG CHIN HOCK V. PUBLIC PROSECUTOR
FEDERAL COURT [KUALA LUMPUR]
SUFFIAN LP, J, WAN SULEIMAN, FJ, SYED OTHMAN, FJ
[CRIMINAL APPEAL NO. 27 OF 1977]
21 AUGUST 1979
Suffian LP (delivering the judgment of the Court):
In this security case tried in accordance with the Essential (Security Cases) Regulations, 1975, ("the regulations"), the appellant was convicted of the offence of unlawful possession of six rounds of ammunition contrary to s. 57(1)(b) of the Internal Security Act, 1960, and sentenced to death.
We dismissed the appeal and now give our reasons.
First, it was said in effect that the conviction was against the weight of evidence. We were of the opinion that there was ample evidence to justify the conviction and that the learned trial Judge was right in concluding on the evidence that the defence had not thrown any doubt on the case for the prosecution.
Secondly, arguments were raised based on the Constitution. Three points were made.
It was said first that in view of Art. 4(1) of the Constitution which reads:
4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void." and of the definition of "law" and "federal law" in Art. 160(1) which includes "any Act of Parliament" any Act of Parliament which amends the Constitution, as is allowed by Art. 159, is valid only if consistent with the Constitution, and that any provision in it, which is so inconsistent, is, to the extent of the inconsistency, void.
Secondly and alternatively, it was said that even if amendments made by Parliament in accordance with Art. 159 may be inconsistent with existing provisions of the Constitution, nevertheless the Court should read into the Constitution implied limitations on power of Parliament to destroy the "basic structure" of the Constitution, which, it was submitted, includes the following features:
(a) supremacy of the Constitution;
(b) constitutional monarchy;
(c) that the religion of the Federation shall be Islam and that other religions may be practised in harmony;
(d) separation of the powers of the three branches of Government; and
(e) the federal character of the Constitution.
This list may be compared with the features of the basic structure of the Indian Constitution given at p. 165 by Sikri CJ in
Kesavananda Bharati v. State of Kerala
 SCR Supp. 1 AIR  SC 1461 as follows:
(a) Supremacy of the Constitution;
(b) Republican and Democratic form of Government;
(c) Secular character of the Constitution;
(d) Separation of powers between Legislature, Executive and Judiciary; and
(e) Federal character of the Constitution.
Thirdly, even if the Emergency (Essential Powers) Act, 1979 ("Act 216") is valid, ss. 2(4), 9(3) and 12 thereof are void as they destroy the basic structure of the Constitution.
Thus there are three issues here.
First, do Parliament have power to make constitutional amendments that are inconsistent with the Constitution?
Secondly, if Parliament have power to make constitutional amendments that are inconsistent with the Constitution, do they have power to make amendments that destroy the basic structure of the Constitution?
Thirdly, have ss. 2(4), 9(3) and 12 of Act 216 destroyed the basic structure of the Constitution and are they therefore void?
To summarise, our answers to the three issues raised are:
1. Parliament have power to make constitutional amendments that are inconsistent with the Constitution.
2. Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself and it is unnecessary for us to say whether or not Parliament's power of constitutional amendment extends to destroying the basic structure of the Constitution.
3. Act 216 is constitutional. Whatever may be the features of the basic structure of the Constitution, none of the constitutional amendments complained of and none of the impugned provisions of Act 216 have destroyed the basic structure of the Constitution.
Persoalan Utama penhujahan YAA-YAA,
1.Boleh kah Perlembagaan Malaysia dirombak oleh Parliament?
2.Dirombak ke arah mana?
3.Sekiranya boleh apakah syarat-syarat dan sekatan-sekatannya?
4.Apa kah rangka utama ie.basic structure Perlembagaan kita?
hmmmm.........pi mai,pi mai tang tu jugak!!!!fikir-fikirkanlah.
'A case a day,makes the Dr.go away'
The Beloved Listens Ever so Intently | Sami Allah - In my despair, in my bleeding sorrow and seemingly hopeless moments of life, May I always praise You O Beloved. The forgetfulness of my human nature amidst...
5 days ago