Essay: Parliamentary supremacy (Malaysia)

Introduction
It is a fundamental principle of democratic government that there should be an elected assembly representing the people, and that this assembly should have authority to make laws that apply to the entire population. But there is no universal agreement that such an assembly should have an absolute and unlimited power to make laws of whatever kind and subject matter. Indeed, in many national constitutions both the existence of the assembly and the extent of its powers are set out in the constitution itself. Without such a constitutional text, are there limits on legislative authority and, if so, where may they be found? And should measures enacted by Parliament prevail over all other rules of law? This examines the extent of the formal authority exercised today by the Parliament in Malaysia. We first consider briefly the stages by which that authority was established, since in the absence of a written constitution, the historical background to the authority of Parliament has great significance. (Graphicraft Limited, 2016)
Examine the influence of parliamentary supremacy in Malaysia
It is argued that the doctrine of Parliament supremacy practised strictly by adhering to the concept that Parliament does not use its sovereign power instituted by the legislature, in an oppressive and tyrannical way. (Teacher, 2016)
In the absence of a written constitution it is possible for the legislature to use its powers in an unauthorized manner. Even if this could be identified as the matter due to the presence of the conventions we believe that Parliament would not do this due to principles of constitutionalism and rule of law. (Teacher, 2016)
With regard to Geoffrey Marshall\’s argument “the most obvious and undisputed convention of the British constitutional system is that parliament does not use its ultimate sovereign power of legislation in an oppressive or tyrannical way. That is a vague but a clearly accepted constitutional rule resting on the principle of constitutionalism and the rule of law.” three fundamental questions arise. At first we need to consider as how this convention is “enforced”? and secondly whether this convention is an adequate protection against oppression and tyranny and finally how might such protection be strengthened. Though the writer argues that as “clearly accepted” in my view I partially agree and disagree with the writer for the reasons I indicate below. (Teacher, 2016)
In addition to identifying the characteristics of valid law, each of the above theorists also seeks to explain the relationship between – and distinctions between – the concepts of validity and effectiveness. The importance of the distinction between validity and effectiveness of law lies in explaining the ultimate source of authority or Sovereignty within a state. The effectiveness of law, while it does not per se determine legal validity, nevertheless interrelates with law’s validity. Under the constitutional theory of the United Kingdom, an Act of Parliament does not become invalid under the doctrine of desuetude. As a result, statutes of great antiquity, although never or seldom used, retain the force of law, and may be relied upon at any time. Equally, a statute, of whatever date, is valid if it meets the criteria of validity, irrespective of whether or not it is effective in achieving its objectives. This is the point made by Sir Ivor Jennings in relation to the banning of smoking on the streets of Paris. A more realistic example of the relationship between the effectiveness and validity of law stems from the system of local taxation in the 1980s. The government decided that the existing system of taxation based on the rateable value of properties, irrespective of the number of persons living in the property, was inequitable. Accordingly, the government introduced the Community Charge6 (or Poll Tax) which levied a flat rate of tax on each person within a local government area. The system was first introduced in Scotland and was met with condemnation and evasion. As a result of its ineffectiveness – based on the rejection of the law by the people – the government 5 Unless expressly repealed. See example the Statute Repeals Act 1998, which repeals ecclesiastical leases legislation dating from the early sixteenth century. 6 Under the Local Government Finance Act 1988 was forced to change the law. The law did not become invalid as a result of its ineffectiveness: rather, the ineffectiveness created a political reason as to why the law should be repealed. If that one instance of an ineffective law is extrapolated to the legal system as a whole, the manner in which effectiveness affects validity can be seen more clearly. If a legal system comes under strain to a significant degree, a point will be reached at which there is civil unrest, anarchy or revolution. The law will cease to be effective. The law, however, under the theory of sovereignty, remains valid. At some point on the scale between general effectiveness and more or less total ineffectiveness – and the point cannot be precisely determined – the underlying explanation for the validity of law will cease. In a revolutionary situation there is a point where the basic norm – or sovereign power – changes. The ultimate validity of law depends on its effectiveness. When there is a revolution, the basic norm may change, brought about by a change in the power structure within a society ultimately creating a new basic norm. (Austin, 2016)
Conclusion
It is possible to conclude that, the legal conclusion and the practical and political conclusion to the statement is different. From a legal point of view, the statement is incorrect, as the Parliament cannot be undermined, as it has Sovereignty, despite delegation, as it has the power to delegate and de-delegate at will. However, from a practical point of view, the parliament cannot do as it pleases, because of, as the stated in the title, various factors. (Macken, 2016)
Bibliography
Austin, J. (2016, November 10). PARLIAMENTARY SOVEREIGNTY. Retrieved N/A N/A, N/A, from PARLIAMENTARY SOVEREIGNTY WEBSITE: http://cw.routledge.com/textbooks/9780415611084/data/reading/PARLIAMENTARY-SOVEREIGNTY.pdf
Graphicraft Limited, H. K. (2016, November 10). Parliamentary supremacy. Retrieved January -, 2010, from Parliamentary supremacy website: http://catalogue.pearsoned.co.uk/assets/hip/images/catalog/uploads/Bradley-Con%20and%20Ad_C04.pdf
Macken, D. (2016, November 10). http://cw.routledge.com/textbooks/9780415611084/data/reading/PARLIAMENTARY-SOVEREIGNTY.pdf. Retrieved N/A N/A, N/A, from N/A: http://www.peterjepson.com/law/UK-5%20Macken.pdf
Teacher, L. (2016, November 10). The Doctrine Of Parliament Supremacy. Retrieved N/A N/A, N/A, from Law Essay: http://www.lawteacher.net/free-law-essays/judicial-law/the-doctrine-of-parliament-supremacy.php#bibliography