OLD

Police Powers (Police Act 1967)

2011-09-22T04:37:00.001-07:00

Police Powers

One of the main functions of a police officer is to ensure that peace is preserved. They are legally appointed persons who are given the special duty of preserving peace. The main statute that regulates their powers is the Police Act 1967. Although every citizen has the power to arrest without a warrant and to use reasonable force in the prevention of crime, the police are the specialists. The Act is divided into 3 aspects, namely, police powers, where police officers have powers to ensure that the public obeys the law; control of the police powers, to prevent an abuse of powers by police officers; and consequences of acting beyond powers, to punish police officers who have breached their duty.

General powers

s.19 -Every police officer is always on duty when required to act and shall perform the duties and exercise the powers granted to him under this Act or by any law in Malaysia. For example, if a police officer is off duty, and sees a robbery taking place. The officer is under a duty to stop such robbery.

s.20(1) - Every police officer shall perform such duties and exercise such powers imposed by law or conferred upon a police officer, and shall obey all lawful directions given by any superior. For example, if the superior orders his subordinate to head to the crime scene even when he is off duty, the police officer must obey.

s.20(2) - A police officer is subjected to the orders and directions of any police officer to whom he is directly subordinate and if the superior feels that he himself has a duty to perform the order, then the superior would have to perform such duty.

s.20(3) – Under this section, more examples of duties of a police officer are provided but it does not affect the previous sections mentioned. Examples include apprehending all persons whom he is by law authorized to apprehend, conducting prosecutions, giving assistance in the protection of life and property, protecting public property from loss or injury and so on.

s.20(4) – A police officer is deemed to be a prison officer when he is escorting and guarding prisoners and other persons in the custody of the police.

Specific Powers

s.21 – Duty on Public Roads

s.21(1) The police officers have the duty to:

(a) regulate, control and divert any traffic;

(b) to keep order on public roads, streets, thoroughfares and landing places, and at other places of public resort and places to which the public have access; and

(c) to prevent obstruction on the occasions of assemblies and processions on public roads and streets, and in any case, when any road, street, thoroughfare, landing place or ferry may be thronged or liable to be obstructed.

s.21(2) – Any person who obstructs, opposes or disobeys any reasonable direction given by any police officer in the performance of his duties under this section is guilty of an offence and liable on conviction to a fine up to RM 200 or imprisonment for a term up to three months or both.

s.21(3) – Any person who commits an offence under this section may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him

s.24 – Power to inspect licences, vehicles, etc

s.24(1)(a) – Any police officer may stop and detain any person; (i) whom he sees is doing any act or who is in possession of anything; or (ii) whom he has reasonable grounds for suspecting is doing any act or is in possession of anything; for which a licence, permit or authority is required under any law.

s.24(1)(b) – Any police officer may stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force, provided such vehicle or vessel, subjected to s.24(4), may not be detained longer than is reasonably necessary to complete such search.

s.24(2) – Any person who fails to produce a licence, permit or authority when required under ss.1(a) may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(3) – Any person who fails to obey any reasonable signal of a police officer to stop any vehicle or vessel or obstructs the police officer in performing his duty, shall be guilty of an offence under this Act and any police officer may without warrant arrest such person unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(4) – Any police officer may cause any vehicle or vessel, which he has reasonable grounds to suspect has been used in the commission of any offence against any law or to be the evidence of such commission of an offence to be moved to the nearest Police District headquarters or other convenient place. The Officer in Charge of such Police District (OCPD) may detain such vehicle or vessel pending enquires for not more than 48 hours. However, if there are commenced proceedings in respect of any such offence in which the vehicle or vessel is liable to forfeiture under any law or may be used for evidence, the OCPD may detain until the end of those proceedings.

The OCPD may direct the release of any such vehicle or vessel if he is satisfied that the owner of such vehicle or vessel will duly produce such vehicle or vessel before court when required and may require such owner to execute a bond or deposit such security as deemed reasonable.

s.27 – Powers to control any assembly, meeting or procession.

s.27(1) – Any OCPD or police officer may direct the conduct in public places in such Police District of all assemblies, meetings and processions, whether of persons or of vehicles and may prescribe the route by, and the time at, which such assemblies or meetings may be held or such procession may pass.

s.27(2) – Any person intending to convene or collect any assembly or meeting or to form a procession in any public place has to apply a licence from the OCPD. The OCPD will grant the licence if he is satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or to excite a disturbance of the peace. The licence will specify the name of the licensee and define the conditions upon which such assembly, meeting or procession is permitted.

The OCPD may, at any time on any ground for which the issue of a licence under this subsection may be refused, cancel such licence.

(2A) – An application for a licence shall be made by an organization or jointly by three individuals.

(2B) – Where the application is made jointly by three individuals, the police officer may refuse the application if he is satisfied that such assembly, meeting or procession is in actual fact intended to be convened, collected or formed by an organization.

(2C) – Where an application is made jointly by three individuals, the police officer shall specify in the licence the names of those persons as licensees.

(2D) – No licence shall be issues on the application of an organization which is not registered or recognized under any Malaysian law.

s.27(3) – Any police officer may stop any assembly, meeting or procession where a licence has not been issued or has been cancelled under ss.(2) or which contravenes any of the conditions of any licence. Any such police officer may order the persons comprising such assembly, meeting or procession to disperse.

s.27(4) – Any person who disobeys any order given under ss.(1) and ss.(3) shall be guilty of an offence.

(4A) – Where any condition of a licence issued under ss.(2) is contravened, the licensees shall be guilty of an offence.

s.27(5) – Any assembly meeting or procession which takes place without a licence issued under ss.(2) or in which three or more persons taking part neglect or refuse to obey any order given under ss.(1) and ss.(3) shall be deemed to be an unlawful assembly. All persons attending, found at or taking part in such assembly, meeting or procession, shall be guilty of an offence.

(5A) – In any prosecution for an offence under ss.(5), it is not a defence that the person charged did not know that the assembly, meeting or procession was an unlawful assembly or did not know the facts or circumstances which made it an unlawful assembly.

(5B) – In any prosecution for an offence under ss.(5), it shall be a defence that the presence of the person charged came about through innocent circumstances and he had no intention to be associated with the assembly, meeting or procession.

(5C) – Every member of the governing body of the organization is deemed to have taken part or been concerned in convening, collecting or directing the assembly, meeting or procession unless he proves that he did not know nor had any reason to suspect that the assembly, meeting or procession was going to take place or, if he knew or had reason to believe as aforesaid, he had taken all reasonable steps to prevent the assembly, meeting or procession from taking place or, if it was not reasonably within his power to so prevent, he had publicly objected to or dissociated himself from the convening, collecting or directing the assembly, meeting or procession.

s.27(6) – Any police officer may arrest without warrant any person reasonably suspected of committing any offence under this section.

s.27(7) – Any person aggrieved by the refusal of the OCPD to issue a licence may within 48 hours appeal in writing to the Commissioner or Chief Police Officer (CPO) and the decision of the said Commissioner or CPO is final.

s.27(8) – Any person guilty of an offence under this section shall be liable on conviction to a fine of not less than RM 2,000, not exceeding RM 10,000 and a term of imprisonment for up to 1 year.

(8A) – s. 173A and 294 of the CPC shall not apply in respect of an offence under this section.

Control of Police Powers

Police officers are subjected to the ordinary laws of the land and also a certain extent of judicial control. Under the Act, there are 2 main offences which are desertion and mutiny.

s.86(1)- Any police officer who absents himself from duty without a reasonable cause for at least 21 days consecutively or shows that he has no intention of returning to his duty shall be deemed to have deserted, and shall be guilty of an offence and liable on conviction to imprisonment not exceeding 12 months.

s.86(2) – The Disciplinary Authority may direct that all arrears of pay due to a person who has been convicted under this section to be forfeited.

s.86(3) – ‘police officer’ includes an extra police officer, a member of the Police Reserve and Police Volunteer Reserve and any other member of the police force in Malaysia.

s.87 – Any police officer who causes, incites, or joins in any mutiny or disaffection in the Force or conspires with any other person to cause such mutiny or disaffection, or having knowledge of any mutiny or disaffection or intended mutiny or disaffection, does not, without delay, give information to any superior police officer shall be guilty of an offence and liable on conviction to imprisonment for up to 5 years.

Consequences of Breaching Powers

s.74 and s.96 state that the YDPA has discretionary powers to make regulations with reference to police discipline and it can be inconsistent with the Act itself.

s.97 allows the Inspector-General to issue Standing Orders for the general control, direction and information of the Force and of all bodies established or raised for police duties under this Act.

s.75 – All fines imposed by or under the Disciplinary Authority for offences against discipline shall be recovered by stoppage of pay, less allowances and trade pay, due, or become due, to the offender. Such stoppage does not exceed 1/7 of the monthly pay, less allowances and trade pay of the offender. If more than one order of stoppage of pay is in force at one time against the offender, his pay shall only be stopped as to leave him with at least ¾ of such pay, not including allowances and trade pay.

s.76 – No pay or allowance, including trade pay shall accrue to any police officer during the period which he was absent from duty without good cause or leave, or is undergoing any sentence of imprisonment provided that the Disciplinary Authority may authorize the payment of such pay, allowances and trade pay up to one half.

s.94 – Any person guilty of an offence under this Act for which no other penalty is prescribed is liable to a fine of up to RM 500 or to imprisonment for up to 6 months or both.

s.78(1) – If there are any complaints, then the Disciplinary Authority may interdict the police officer pending the investigations and enquiry into his conduct.

s.78(2) – The powers, privileges and benefits of a police officer shall be in abeyance during his interdiction provided that he will continue to have the same privileges or ranking prior to the interdiction.

s.78(3) – During interdiction, the police officer must be paid but only half of his normal pay unless the Disciplinary Authority wants to pay more than half. If the officer is not guilty, the he must be paid in full even for his time in interdiction.

s.79(1) - A Committee of Enquiry may be convened by a Commanding Officer to enquire into the death or injury of any police officer or into the loss or damage to any property entrusted to or lawfully in the possession of the Force.

s.79(2) – A Committee of Enquiry is empowered to make findings and recommendations as follows:

(a) whether the deceased or injured person was on duty at the time of such death or injury;

(b) whether the death or injury was directly attributable to the nature of the duty on which the deceased or injured person was engaged;

(d) whether a pension, gratuity or allowance should be paid in accordance with the provisions of rules under this Act or any other law.

(e) whether any action is necessary to prevent the future occurrence of similar death or injury to other police officers.

s.79(3) – A Committee of Enquiry shall make findings and recommendations to the Commanding Officer as follows:

(a) estimated cost of loss or damage;

(b) individual responsibility for such loss or damage;

(d) the manner in which the cost of such loss or damage may be recovered or made good to the lawful owner of such property.

Electoral System (7 types)

2011-09-01T02:22:00.000-07:00

Elections are a crucial part of Malaysian constitutional law, because they provide the basis of Malaysia’s claim to have parliamentary democracy and representative government, although the government has been the same since Merdeka. To ensure proper representation, there has to be a proper electoral system. The current electoral system practised in Malaysia is First Past The Post (FPTP) system.

Majoritarian Systems – Who wins the majority wins the seats

1. First Past The Post

2. Alternative Vote System

3. Supplementary Vote System

Proportional Systems (fairest) – Every vote the party obtains is considered before deciding on the number of seats each party gets

1. Single Transferrable Vote System

2. Party List System

Hybrid Systems – Combines Majoritarian system and Proportional system

1. Additional Member System

2. A.V. Plus System

First Past The Post (FPTP) System/ Simple Majority System

Under this system, the candidate who gains the highest number of votes in the election wins the seat in his or her constituency, irrespective of the proportion of votes cast for himself or his opponents. For example, if the votes cast for individual candidates at an election are John 3,200, Mark 2,800 and Brown 2,400, John still wins the election although 5,200 or 70% voted for other candidates. The party that wins the majority number of seats is the party that wins the election, and that party will form the government.

Advantages

- It is the simplest to understand, to operate, to use, and to count votes. The voters only choose whichever party they want and the results can be obtained very quickly.

- Each constituency is represented by a Member of Parliament. It is good because the constituents will know who their representative is.

- There is a link between the MP and the constituent. There will only be one MP in the constituency, thus, the constituent will know which MP to turn to whenever there is a problem.

- This system encourages a strong and stable government. Why is this so? The biggest party during the election will normally have the support of more people compared to smaller parties. Hence, more members, stronger campaigning powers and advertising powers. In every constituency, the stronger party will win the seat even though there may be massive support for the opposition

- No coalition government will be formed. It means that the government will be more accountable as they cannot blame any minority parties for bad decisions.

- Party strongholds. There will be strongholds all over the country, meaning that the constituencies will always be won by the ruling party as they have the support of the majority even if they made bad decisions, possibly due to better candidates. The opposition might have strong support, but insufficient to topple the bigger party

Disadvantages

- The system is not proportionate. It lacks the concept of proportional representation. It means that the number of seats which a party obtains in Parliament is not proportional to the actual number of votes gained. This is because under the system, the winner takes it all.

- There are many wasted votes. The total number of votes cast will not be taken into account when it comes to the allocation of seats in Parliament. For example, in UK, John (Conservative Party) gets 8,000 votes, Brian (Labour Party) gets 7,000 votes and Sarah (Liberal Party) gets 5,000 votes, the winning candidate will still be John even if his total number of votes is lower than that of the other two parties combined. In the 1997 UK elections, Labour Party won 44.4% of total votes but they gained 419 out of 659 seats, which means that more than 50% of the seats. This shows that the amount of votes wasted is huge.

- FPTP does not require the candidate to obtain the majority of votes. It does not follow the principle of “1 man, 1 vote, 1 value”. As a whole, sometimes the ruling party might not even have half the seats in Parliament.

- This system translates a small number of votes into a big number of seats. In the 1983 UK elections, Labour Party won 27% of total votes, while the SDP-Liberal Alliance won 25% of total votes. However, Labour controlled 33% of the seats while SDP-Liberal only won 3.5% of seats. This shows that Labour won slightly more votes yet they obtained much more seats.

- The government sometimes becomes too strong and too stable. They will end up dominating the Parliament and they will pass laws as they wish.

Alternative Vote System and Supplementary Vote System

-Both systems are similar to FPTP as they are all Majoritarian systems. There will still be constituencies and in each constituency, there will only be one Member of Parliament. The candidate who wins the majority of votes in the constituency will still win the seat.

AVS

-The main difference between AVS and FPTP is that voting is done according to preference.

- To win the election, the candidate must have at least obtained 50% of first preference votes. In other words, 50% of voters must put him as number 1 to become an MP. The voter marks his ballot paper with preferences expressed in numerical order. The candidate who gets the lowest first preference votes will be redistributed in accordance with that candidate’s supporters’ second preferences. This process is continued until one candidate achieves an overall majority of votes.

- The disadvantage is that some people only have one preference. It also takes more time to calculate the votes

SVS

- It is very similar to AVS

- The only difference is that the voter’s choice is only 1^st and 2^nd preference, instead of ranking all the candidates. If nobody reaches 50%, then votes cast for all candidates other than the top two are redistributed between the two top candidates until a clear winner emerges.

-The advantages and disadvantages are similar to the FPTP system.

Proportional Representation System

-Proportional Representation simply refers to an electoral system in which parties gain seats in proportion to the number of votes cast for them. The percentage of total votes is proportional to the total number of seats. For example, 25% of votes will result in 25% of total seats. There are two types of proportional representation, i.e. the Single Transferrable Vote System and the Party List System

STV

- Under this system, multi-member constituencies between 5 to 7 members are required. Voters list the candidates in order of preference. The principle used in vote counting is that the candidate only needs a certain number or quota of votes to be elected and any votes he receives beyond this figure are surplus. Once the candidate has received the quota necessary to secure his election, the surplus votes are redistributed among other candidates according to 2^nd preferences.

Party List System

Under this system, each party is allowed to put up a list of candidates equal to the number of seats to be filled. The voters vote for a party rather than an individual. The voters will see a list of all candidates for a particular party and vote for the list as a whole. Seats are allocated in proportion to the votes cast. For instance, the total number of votes polled by each party is then divided by the quota. Suppose the quota is 10,000 and a particular party list gets 50,000 votes. The first 5 names of the list are declared elected.

Advantages

- Every vote has a value, there will no longer be wasted votes; “1 man, 1 vote, 1 value”. Every vote has an equal value because there are no more constituencies under this system. The ruling party will become weaker as there are no more burnt votes

- Provides a better check on the Executive in Parliament, thus, ministerial responsibility will be upheld. When there are more opposition MPs in Parliament, everything becomes more effective.

- Easy for illiterates to vote, as they only vote based on the logo of the party.

- Vote calculation can easily be done

- Minorities will be represented fairly in the Parliament

Disadvantages

- There are no constituencies under the Party List. It destroys links between the MP and the constituents. If any problem arises, constituents will not know who to go to since no MP represents them.

- Under the Party List, the government formed may end up too weak, too unstable and cannot rule. Therefore, they may have to form a coalition government. France uses Party List and after every election a coalition government is formed. The parties there are matured enough politically to rule together. However, such system is unlikely to work in Malaysia

- Difficulty in drawing the list. It is hard to decide on who should be the 1^st, 2^nd, 3^rd and etc. It may end up having a system where the leader of the party has the say on who should be the MP

- Voters cannot choose which candidates they want to vote for

Hybrid system

- Basically, it is the combination of one majoritarian system and one proportional system. Under the system, each voter will now have 2 votes. There are two main hybrid systems; Additional Member System (AMS) and A.V. Plus system

AMS

-AMS is the combination of FPTP and Party List system. Each voter would have two votes; one for the candidate in the constituency and another for the party of his choice on a regional basis. An equal amount of seats for constituency and Party List is put up. Whichever party with the most seats after combining the systems will become the ruling party. To illustrate, Jack votes for Bala from BN, voting by constituency and at the same time, he votes for DAP, voting by party. BN won 80 seats from constituencies and got 40% of votes (50 seats) for Party List. They become the ruling party with a majority of 130 seats.

A.V. Plus

-This system is very similar to the AMS. It was first proposed by a special commission formed in UK. Lord Jenkins proposed that AV Plus, a combination of AVS and Party List should be used. It has the exact same advantages and disadvantages with AMS.

Advantages

-A strong and stable government where people get to choose their representatives is formed

- The number of seats that the winning party wins will be reduced. This is to ensure that the opposition parties have the chance to win more seats.

-There will be more checks on the Executive by the Parliament as the Parliament is well represented.

- Voters can choose to vote for a candidate and a Party which they favour separately. For example, John can vote for Lim from PR and yet vote for BN in the Party List.

- There are still constituencies and each constituency has 1 MP. Thus, the link between MP and constituent is not broken.

Disadvantages

- Government may not be as strong and stable as in FPTP

- It is a more complicated system and it is harder to use

- More MPs will be coming from constituencies and Party List. MPs from the constituencies will probably gain more respect from the people as MPs from the Party List represents the list, not the people.

Conclusion

-Democratic states take many forms, but all have an electoral system where citizen can elect for their political leaders. There are no right or wrong answers in choosing an electoral system. There is no one perfect electoral system where everybody can agree on.

Parliament

2011-08-31T10:18:00.000-07:00

Is the Scrutiny of Bills effective in Parliament?

No.

Functions of Parliament (briefly)

-Parliament is the prime law-making body in the country. A Bill cannot become law without the going through the fires of scrutiny in Parliament. Each of the government’s policy is put into effect through legislation

- Parliament controls the national expenditure and scrutinises public expenditure. Money Bills cannot become law without the authority of Parliament. The Dewan Rakyat oversees matters of national expenditure through its Public Accounts Committee (PAC)

- Parliament also checks on the Executive. The Executive represents the people. Therefore, the Parliament must ensure that the Executive is accountable to the people.

- Parliament checks on Executive by checking on the Bills. Since the Bills are introduced by the Executive, such Bills contain the policies of the Executive. Hence, they are indirectly checking on the Executive. Debates on the bill happen in the 2^nd reading and the committee stage (clause to clause basis).

Procedure for the passing of Bills (very briefly)

Bills are introduced by Ministers most of the time. In Dewan Rakyat, the Bill goes through the First Reading, Second Reading, Committee Stage, Report Stage, Third Reading and is passed to the Dewan Negara. The same cycle occurs in the Dewan Negara. After the Bill has been passed in both Dewan, it will be sent to the YDPA for his Royal Assent and published in the Federal Gazette to take effect.

Parliament is not playing its role properly (why?)

(i) Dewan Rakyat

- dominated by ruling party. Bills are simply debated because the ruling party will be supporting their own Bill.

- PM uses Party Whip to ensure that important Bills will go through. MPs from the ruling party will have no choice but to support the Bill.

- At the Committee Stage, the number of MPs is very small. A lot of MPs do not attend the session, thus, debates are not effective. Since Independence, only five Bills have been committed to Select Committees

-There are many motions to restrict the debates; namely; guillotine motion, kangaroo motion and closure motions

Kangaroo motion - If any MP from the ruling party decides to propose a motion to skip certain debates, if more than half the house agree then they can skip whatever was proposed and so they will only debate whatever they want to debate.

Guillotine motion - Whenever the MPs are debating, if the ruling party finds the debate is taking too long, any MPs can set a time to end the debate, whether on a particular issue or the whole debate. Again, they will vote, if more than half the house agrees then it’ll happen.

(ii) Dewan Negara

-Better in the sense that there are no motions to restrict the debates

- Senators are more learned; they have more time and less politically aligned

-However, Dewan Negara can only delay a Bill for 1 year and for money Bills only 30 days if they don’t agree with the Bill.

(iii) YDPA

- YDPA has to give his royal assent to Bills within 30 days, if he doesn’t, it still becomes law

There are other mechanisms in the Parliament to check on the Executive

(i) Select Committees

- Special Committees formed in Parliament, consisting of MPs and their role is to check on Ministries. Sometimes they may be formed at the Committee stage of the Bills and sometimes formed to check on the issue, for example, the Electoral System

- Plays a key role in eliminating loopholes or defects in Bills before they become law

Why it is not effective

- Most of the MPs in the Select Committee are members from the ruling party. They will not scrutinize the Bills introduced from their own ruling party.

- It is not compulsory to debate on the report given by the Select Committee. Most of the time, the reports are disregarded.

- The members of the SC are not experts and the SC may not know what is right or wrong

- SC cannot subpoena or compel Ministers to answer their questions

-However, the Public Accounts Committee is a good SC, it really checks on the government.

-Although the SC is not very effective, at least the Ministries are afraid because there is someone watching over them. Unfortunately, the SC can only check on what has already happened and not what is happening.

(ii) Question Time

- It is a procedure in Parliament for the Ministers to answer questions regarding their ministries.

- It takes place during the Second Reading, Committee Stage, etc

-It is important as it compels the Ministers to be responsible and accountable to the people. For Question Time, oral answers are important for it to be effective.

Why it is not effective

- The time allocated for Question Time is too short

- Most of the questions asked are replied in the written form, where very few actually read it.

- Any ‘dangerous’ questions will be put at the bottom and it would not be answered orally due to time constraint.

- 2 days notice must be given to the minister so that the minister will prepare the answer very carefully. However, the answer is most probably prepared by civil servants in his department that have a vast amount of resources to answer the question. The answers prepared might be even more effective than the question asked.

- Ministers can always use stone-walling, i.e. no real answer is given and the minister speaks about something irrelevant.

- Ministers can divert the questions to other departments

- Ministers might hide behind the concept of Collective Responsibility, where all agrees that the Minister cannot be asked individually

(iii) Debates

-There are three types of debate; namely; daily adjournment debate for the debate of any matter; emergency adjournment debate for important issues; and debates in the passing of a Bill

- Debates are to compel the government to explain and defend its policies and decisions

Why it is not effective

- The House is controlled by the ruling party. Therefore, time may not be allocated for debates on certain issues

- If a certain issue to be debated is too difficult to be answered, then the government will hide under Collective Responsibility or Public interest immunity

- Most of the time, the Dewan is nearly empty. Thus, the debates will not be effective

-Government passes motions to cut short debating time through guillotine motion, kangaroo motion and closure motion

-Debates are not done properly, since the ruling party tends to defend their own Bill

Reforms

(i) Select Committees

- Should be given the power to compel Ministers to answer their questions

- Should be given power to call in experts to assist them in certain issues

-The reports prepared by the SC should be compulsorily debated in the Dewan

-More Bills should be sent to the SC

(ii) Question time

- Questions should be on a first come first serve basis either on orally or written reply, not at the discretion of the Parliament

- Parliament should have more sittings and allocate more time for Question Time.

- There should be a Prime Ministerial question time, like the one in UK

- Ministers should not be allowed to hide behind Collective Responsibility

(iii) Debates

- More time should be set aside for debates

- MPs should not be allowed to leave before the end of the session

(iv)Other reforms

- Improve the Electoral System, because the current system gives too many seats to the ruling party, which is the main factor behind the ineffectiveness of Parliament.

- Remove the Party Whip. MPs are not members of the Executive, so they should not compulsorily support their own Bills.

- Kangaroo motion, Guillotine motion and closure motion should be abolished

- More emphasis should be put on Individual Responsibility

- The number of parliamentary sittings should be increased.

Ministerial Responsibility

2011-08-30T23:07:00.000-07:00

Definition of Ministerial Responsibility

- Wade and Bradley defined the doctrine as “Within a democratic state, those who govern should be accountable, or responsible, to whom they govern”.

-Marshall and Moody defined it as “Ministers are responsible for the general conduct of government…”

Collective Responsibility

- Lord Salisbury defined the convention as “It is only the principle that absolute responsibility is undertaken by every member of the Cabinet, who after a decision is arrived at, remains a member of it…”

- It simply means that the members of the Cabinet as a whole must publicly support all governmental decisions made in the Cabinet, even if they do not privately agree with them. The government must, as a whole, be accountable and answerable to the Parliament.

To uphold such a concept, they must uphold three concepts of collective responsibility, namely;

(i) All ministers must speak with one voice, there must be unanimity

(ii) If there is a vote of no-confidence against the government, the whole government must resign

(iii) There must be cabinet secrecy

(i) All ministers must speak with one voice, there must be unanimity

- Collective responsibility cannot be upheld if the Ministers do not speak in one voice.

- It is a political necessity. If the government is always differing in public, then it will not be possible for them to run the country properly because they will lose the respect of the people.

-Without one voice, the government will probably collapse in no time.

-Under this principle, ministers can still differ with each other over policy matters but it can only be done privately.

Is this concept being upheld in Malaysia?

-Yes. The governments in Malaysia and in UK are both speaking in one voice. In Malaysia, the Executive is always speaking in one voice but not as often in UK because currently they are a coalition government.

- Because of the concept of one voice, sometimes the government becomes not accountable. This principle destroys individual responsibility. Whenever a problem arises, the minister will always use the concept of collective responsibility to hide from being accountable individually.

- This concept also lessens accountability in Parliament. The MPs can always hide behind collective responsibility whenever they are questioned about a Bill being passed.

- The MPs always cover and answer for each other whenever possible, especially during question time.

- This concept is training Ministers to be ‘Yes-Man’, since they cannot say no even if he or she really disagrees with a policy.

- The PM becomes more powerful because other ministers cannot disagree with what he says.

- However, at the end of the day, the Executive still needs to speak in one voice. If they don’t, then the government would be unstable.

- The PM’s decisions are always correct. This is because the PM is an elected head, thus, he is supposed to have the support of the majority. Unfortunately, over-abusing this concept destroys individual responsibility.

(ii) If there is a vote of no-confidence against the government, the whole government must resign

- For example, if an opposition party becomes the government and decides to put forth a Bill important to its party or related to its manifesto and it was defeated, then the PM with his Cabinet must resign. It also uses the principle of one voice since the government must resign as a whole.

- It is a good rule that the Executive must resign collectively because they must be responsible and accountable to the Parliament. If the Parliament loses confidence in them, then the people also loses confidence in them, since the Parliament is the representative of the people.

Is this concept working in Malaysia?

- In Malaysia, it will never happen. Although it is a good procedure in reality, it is unlikely that it will be used in Malaysia.

- This is because the Parliament is dominated by the Executive. More than half of the MPs belong to the ruling party.

- Besides that, if Party Whip is used, then all of the MPs from BN must support the Bill, thus, the Bill will never be defeated.

-This 2^nd concept does not really work partially because of the electoral system.

- The First Past The Post (FPTP) system used in Malaysia encourages the government to have too many seats in Parliament. When the government is too strong, the people will suffer. Other parties are too weak, and so they are regarded as not chosen by the people.

- Therefore, collective ministerial responsibility is not upheld.

- Party Whip is another bad system that allows the Executive to dominate the Parliament. In Malaysia, the Party Whip ensures that Bills containing policies from the ruling party will go through as the MPs from the ruling party can only agree to the Bill.

- However, in France, the coalition party, politically unstable, is very good because they will be very accountable. Opposition will remove them straight away if they make faulty decisions, but will merely appreciate them if they made correct ones.

(iii) There must be cabinet secrecy

- Secrecy in Cabinet is necessary to a certain extent. Certain things discussed in Cabinet must not be heard by the people. Something that is injurious to national security has to be kept secret. For example, the amount of war vehicles owned by a country should not be made public.

- However, the government may sometimes hide behind this concept. Even when a certain thing is not related to national security, the government still insists that it is and refuses to discuss about it.

- For example, in question time, the Minister refuses to reveal things with the reason that it is national security.

- Duncan v Cammell Laird

A submarine sank during sea trials with the loss of 99 lives. The families of the sailors who had been killed in the disaster claimed damages from the builders, Cammell Laird. The House of Lords upheld a certificate issued by the Admiralty claiming Public Interest Immunity in relation to the plans of the submarine. Case was dismissed.

-Council for the Civil Service Unions v Minister for the Civil Service (GCHQ case)

The government made a decision that the people who work in GCHQ cannot join Unions. It would be injurious to national security. In 1984, the judge said that he will be the one deciding whether the matter is national security or not. The judge reviewed all of the evidence privately, and decided that it really is injurious to national security. After this case, courts were able to determine whether certain materials affect national security.

- Secrecy is bad sometimes because the government hides behind the concept and not to disclose certain things to the public. At least today, the judiciary in UK will be the one deciding whether it is public interest immunity or not.

Individual Ministerial Responsibility

- It means that ministers must be responsible to the Parliament on their conduct or the conduct of their departments.

-There are 4 aspects of individual responsibility that are not stated in the FC

(i) Personal Misconduct

-The general rule for personal misconduct is that ministers should resign, for example, sexual impropriety, gangsterism, corruption or etc.

John Profumo

He was found to have been in a sexual relationship with a prostitute, Christine Keeler. She was also found to have a close personal relationship with a Russian Naval at the Soviet Embassy. When questioned in the House of Commons, Mr. Profumo lied. When the truth emerged, he resigned office.

Chua Soi Lek

He was the Health Minister at the time. He was caught having sex with a young woman in a DVD that was widely circulated. As a result, he resigned from all political posts due to his misconduct.

Dato’ Anwar Ibrahim

He was the Deputy Prime Minister, and he was called to resign following allegations that he was involved in sodomy. He refused to resign.

(ii) Financial Impropriety

- This aspect can also be considered as a part of personal misconduct. The general rule is that a minister is supposed to resign due to financial impropriety.

John Belcher MP

In this case, a Tribunal of Inquiry was established to inquire into allegations of payments being made to John Belcher MP. He received gifts offered with a view to securing favourable treatment in relation to licences granted by the Board of Trade. He resigned office and his parliamentary seat as a result.

(iii) Departmental Error

Crichel Down Affair 1954

In this case, Crichel Down was compulsorily taken by Air Ministry. After the 2^nd World War, the land was transferred to the Ministry of Agriculture. A part of Crichel Down was owned by Mrs. Marten and her husband wanted to reclaim the land. He asked the Agriculture Land Commission whether he could buy back the land but they claimed they have no power to investigate. Mr. Marten brought the matter with his MP, resulting in a request of a report from the Land Commission. The official in charge was told not to approach the previous owners and to treat the matter as highly confidential. The report was full of inaccuracies. Mr. Marten was informed of the decision and advised the Ministry that he would rent the whole land. Mr. Marten’s letters went unanswered and pressed for a public inquiry. The inquiry found inaccuracies in the report and inefficiency in handling the matter. Later, the minister, Thomas Dugdale, accepted responsibility and resigned.

Falklands Crisis

The minister in this case wrongly called back a battleship from Falklands Island and it was taken over by Argentina. It almost triggered a war between UK and Argentina. 3 people were made to resign, Lord Carrington, the Foreign Secretary, Mr. Luce and Mr. Atkins but the minister did not resign.

- Samy Vellu’s department made a lot of errors, especially in relation to the collapse of the Highland Towers. However, he did not resign at all.

(iv) Policy Error

- It means that ministers pass wrong policies and causes loss to the people. However, ministers generally do not resign over this concept. This is because Ministers usually hide behind the concept of collective responsibility whenever they made a policy error.

- The decision to revert the teaching of Mathematics and Science to English and eventually back to Bahasa Malaysia clearly shows a policy error, but no ministers resigned.

Suez Canal Affair

The Labour government wanted to grow peanuts in Tanzania as a contribution to the African and British economies. Millions of pounds of taxpayers’ money were used. However, the plan failed and the Minister in charge did not resign.

Why isn’t the concept of ministerial responsibility really working in Malaysia?

- Electoral system (FPTP) favours the ruling party. The ruling party can always hide behind collective responsibility, to speak with one voice, whenever they make an error.

- This concept is still new in Malaysia, Ministers do not understand that they must be responsible and accountable to the people

Judiciary

2011-08-19T05:01:00.000-07:00

Basically, judiciary refers to the system of courts in the country. Its main function is to interpret and apply the law. The judiciary is also responsible to uphold the constitution, by reviewing any Acts of Parliament that is against the constitution. It is also important in upholding citizen’s rights and liberties. The judiciary also upholds the concept of the rule of law and separation of powers.

Independence

- Lord Browne-Wilkinson:‘A Judge should be free from any pressure from the Government or anyone else as to how to decide any particular case’

- Tun Mohamed Suffian: ‘Judges are given independence not to bolster their ego but in order to allow them to serve members of the public whose disputes with each other or with the Government should be determined impartially by persons who are free to decide in accordance with the law and their conscience’

- It basically means the ability of a Judge to decide cases on their merits, free of any pressure

Neutrality

- it means the judges’ ability to make decisions without any favour for either parties in all aspects including race, colour, sex, political ideologies, religion and etc.

- There are a few methods to instill neutrality into judges, for e.g. send judges for courses, appoint judges from a bigger cross-section of the community, establish a special judicial appointments commission and etc. However, in reality, none of these will actually be effective.

Protection of Judicial Independence and Neutrality through the FC

- Judicial appointments. Although the appointments of Judges are placed in the hands of the Executive, its decision are deeply informed by judicial advice as well as constitutional and diplomatic considerations. Under Art.123, only those with appropriate legal training and experience can be appointed.

- Security of tenure. A judge can only be removed by the YDPA on grounds specified under Art.125(3) for either a breach of the judge’s code of ethics or inability due to infirmity of body, mind or other cause, to discharge his functions. A special tribunal must recommend the removal.

- Guarantee of remuneration. Remuneration of judges is to be charged directly from the Consolidated Fund. Under Art.125(7), it is payable every year without the need for parliamentary debate.

- Prohibition of public discussion on Judges’ conduct. Discussion is only allowed if at least a quarter of the members of the House enter a motion. Discussion is prohibited at state legislative assemblies. Art.126 and the Court of Judicature Act give Judges’ power to punish for contempt of court.

- Guarantees against packing. The FC specifies the number of judges that can be appointed to each court to prevent the Executive from overruling unfavourable precedents by packing the courts with judges sharing similar political views.

Judicial Problems (Article 121)

- The FC vested ‘judicial power’ in the two High Courts before 1988 Judicial Crisis.

- The new Art.121(1A) only provides for the jurisdiction of the High Courts, Federal Court and the Court of Appeal without the mention of ‘judicial power’.

- The judiciary now is no longer the only one who may have judicial powers. If one day another institution is formed by the government to play certain functions of a judiciary, that new institution is valid. The FC in Malaysia and the constitution in Jamaica and Ceylon did not expressly mention the term ‘judicial power’.

- The Queen v Liyanage and Hinds v The Queen

Both cases involved the setting up of special courts which had not previously existed, and in both cases the Privy Council ruled that the statute establishing the court was unconstitutional because it interfered with the judicial power, impliedly vested by the Constitution in the ordinary courts of law. The principle established in these cases is that any court which is given judicial powers must be staffed by judges appointed in the usual constitutional manner, or else must be answerable to the ordinary courts as a court of inferior jurisdiction.

- PP v Datuk Yap Peng

In this case, Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General.

- In America, the judicial power is expressly mentioned in the constitution.

-Marbury v Madison

The Supreme Court struck down Judiciary Act of 1789 as it was illegal and unconstitutional. The Court carried out judicial review for the first time.

- Article 121(1A) also led to the introduction of the Syariah Courts. It is unique since all modern democratic countries have only one system of courts dealing with all matters.

- It is stated in Article 121(1A) that High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. The issue arising from this is whether the High Court can review the decisions of the syariah courts and whether the introduction of Syariah courts have created a new system of courts giving rise to two different systems of courts. Another question that arises is whether a dispute between a Muslim and a non-Muslim is subject to the civil court or the syariah court.

- According to Harding, the High Court still has jurisdiction to review the decisions of the Syariah courts as major readjustments would be necessary if the amendments intended to create a new legal system.

Judiciary Crisis 1988

Before 1988, the Judiciary in Malaysia carried out judicial review frequently and struck down laws or decisions which were unconstitutional such as in Mamat bin Daud and Datuk Yap Peng. However, some of the laws struck down were made by the PM, Tun Dr. Mahathir. He was not pleased and he made speeches attacking the Judiciary. The opposition leader cited him for contempt of court when he complained to Time magazine about the Judiciary’s obstructiveness. The case was dismissed but the Supreme Court gave the PM a tutorial on separation of powers. The Lord President replied to the executive criticisms in speeches and from the bench. In the 1987 UMNO elections, the UMNO leadership had been challenged from within the party. Team A which comprises of Dr.Mahathir and Ghafar Baba narrowly defeated Team B comprising of Tengku Razaleigh and Datuk Musa. 11 Team B members filed a suit challenging the legality of the elections as Team A’s 30 branches sent people to vote even though the branches were not registered. Under the Societies Act, UMNO was declared as illegal and the elections were therefore invalid. Then, Team B applied for the registration of ‘UMNO Malaysia’. The application was rejected by the Registrar because the old UMNO had not yet been deregistered and the name was too similar to the old party. Team A immediately deregistered and registered a new party, ‘UMNO Baru’ and the application was granted. Team B proceeded to register ‘Semangat 46’. Parliament amended Societies Act to transfer assets from the old party to ‘UMNO Baru’. After the general election of 1990, BN still won with a two-thirds majority.

After a meeting between judges was held, Lord President wrote to the YDPA to intervene and stop the accusations made by the Executive on the Judiciary. The YDPA was not happy and told the PM. PM asked YDPA if he could remove the Lord President and the YDPA assented if there are grounds to do so. PM advised the appointment of a Tribunal and Lord President Tun Salleh was then suspended pending the report of the Tribunal. Tun Salleh objected to the Tribunal because the Chairman was the second in line to be the Lord President and it went against natural justice. The Tribunal rejected his argument and Tun Salleh applied to the High Courts to prevent the Tribunal from proceeding for its unconstitutionality. Later, Tun Salleh renewed his application for a stay before the Supreme Court and the five Supreme Court Justices had taken it upon themselves to hear the case granting Tun Salleh an order restraining the Tribunal from submitting its report. However, those five judges were themselves suspended and another Tribunal was formed to investigate charges against them. Subsequently, the Tun Salleh Tribunal reported recommending his dismissal and the Tribunal on the five judges also reported. Finally, Tun Salleh and two other judges were removed from office.

PM and Cabinet

2011-08-18T04:23:00.000-07:00

Appointment of PM

- The PM is appointed by the YDPA exercising his discretion in Article 40(2) of the FC.

- The YDPA is expected to appoint the PM from the Dewan Rakyat who is in his judgement is likely to command the confidence of the majority of that House, Article 43(2) of the FC.

- The YDPA might have discretionary powers to appoint a PM during a hung Parliament. However, it has never happened in Malaysia as the ruling party has always secured a majority of seats in the Parliament. Thus, the legal position behind this is not fully certain.

-The YDPA’s power to appoint the PM is a mere formality, as he doesn’t have the power to choose.

- YDPA can appoint a temporary PM in his discretion if all Ministers happen to die together.

Dismissal of PM

- The FC is silent about the dismissal of the PM. However the Reid Commission did mention dismissal but only in the context of a PM that has lost the confidence of the House but nevertheless refuses to resign.

- The Commission gave the YDPA power to sack such a PM.

- Article 43(4) of the FC put the duty on a PM that has lost the confidence of the House to resign. The argument that the power to appoint includes the power to dismissal doesn’t apply, firstly, because the YDPA’s power to appoint is a mere formality, and secondly, it would run counter to Article 43(5) of the FC. Since, Malaysia is a democratic country, and the YDPA was not elected by the people, he should not be given the power to sack a PM.

- To support the argument on whether the YDPA can sack a PM under normal circumstances, reference to several decided cases have to be made. If the Constitution is silent on something, then we have to look at the prerogative power.

- In 1975, PM of Australia, Gough Whitlam lost in the vote of no-confidence, but he refused to resign. Then, the Queen of England directed the Governor General of Australia (Sir John Kerr) on her behalf to sack the PM of Australia and appoint the Opposition leader (Malcolm Fraser) as the temporary PM.

- Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli

In this case, Stephen Kalong Ningkan was the Chief Minister (CM) of Sarawak. There were allegations that some MPs from his party went to the other party and Stephen no longer controls the majority of seats. Some said that Stephen no longer control the confidence of majority. However, he cannot be removed because there is no vote of no-confidence as he refused to call the Assembly to sit. The Governor couldn’t take it and sacked the CM, and the CM sued the governor in court. It was held that a Governor cannot sack a CM (Head of State cannot remove Head of Government under normal circumstances) without a vote of no-confidence.

- Adegbenro v Akintola (opposing view)

It was held that the withdrawal of support could be indicated outside the House and thus the head of state was justified in dismissing the head of government.

- In an earlier case, the Sultan of Perak (Azlan Shah) managed to remove the Chief Minister even without the vote of no-confidence. The Court of Appeal held that the Sultan can remove the CM. It is against the precedent case and against constitutionalism.

-However, Stephen Kalong Ningkan’s case should prevail because the CM is the people’s choice.

Powers of PM

Why is the PM given so much power? The Prime Minister holds the Cabinet together and is supposed to ensure that the objectives of the Cabinet are achieved. The PM is required to maintain the responsibility and accountability of all ministers on an individual and collective level. The PM is also required to ensure that the Executive is able to administer the country through the formulation and implementation of effective policies. The PM is also an elected representative of the people, and he or she therefore needs to represent the majority in making decisions

- PM can appoint the entire Cabinet without any need for approval by Parliament or by his party, Article 43(2)(b).

- PM has the power to choose, switch, promote, demote and dismiss his colleagues and place them in order of seniority. He may create a new ministerial office or close one. He may transfer functions from one minister to another and even designate one of them to be the DPM.

- PM may require a minister to resign at any time for any reason he thinks fit. If the minister refuses to comply, the PM may advise the YDPA to dismiss him or her. In Datuk Seri Anwar Ibrahim v Perdana Menteri, the court held that the letter of dismissal need not come from the YDPA. It was sufficient for the Monarch to be informed before the PM dismisses his colleague

- PM can determine when the Cabinet shall meet and what to be discussed. He is entitled to say what issue shall be referred to him outside the Cabinet. Disputes between departments in the Cabinet may be resolved by his informal rulings.

- The PM is not bound by Cabinet advice. Many decisions are made by the PM alone or by him after consulting several of his favourite ministers.

- PM can create committees of the Cabinet, choose their membership, prescribe their terms of reference and give them decision-making power. He may preside over some committees

- PM may create an advisory body of outsiders to counsel him on any particular matter.

- PM chooses the senators who are appointed by the YDPA to the Senate under Art. 45(1) of the FC

- PM may give advice to summon, prorogue or dissolve the Dewan Rakyat. However, the YDPA may reject the advice on the dissolution of Parliament under Article 40(2)(b).

- PM figures prominently in the appointment of all important constitutional posts, including judges of superior courts, AG, Governors, Election Commission, and etc.

-PM enjoys substantial powers of patronage. If he does not give a political office to someone he wishes to reward, he may confer on him chairmanship of a statutory corporation or an advisory or consultative body, a royal commission and etc.

Control on powers (briefly)

- Although the PM enjoys wide discretionary powers, he is still accountable to the people as the people will elect the PM every four to five years.

- PM represents the nation in international visits for diplomatic relations. His conduct in ruling the country and overseas will affect the nation.

- The PM cannot continue to be in office if the Cabinet Ministers withdrew their support. Thus, he has to treat his colleagues with respect.

- The MPs may go against him by giving a vote of no-confidence, leading to the PM’s resignation.

- The PM is also subjected to administrative controls.

Separation of Powers

2011-07-26T08:52:00.000-07:00

The separation of powers in its simplest sense is the division of state into branches, each with separate and independent powers and areas of responsibility. The normal division of branches is into an executive, a legislature and a judiciary.

Definition by jurists:

Montesquieu:
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything; if the same man, or the same body, whether of the nobles or the people, were to exercise those powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."

Aristotle:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element."

John Locke:
"The three organs of the state must not get into one hand...It may be too great a temptation to human frailty..."

Strict sense: There should be a clear demarcation of functions between the legislature, the executive and the judiciary. None should have excessive power and there should be in place a system of checks and balances between the institutions

Liberal sense: It would mean that let there be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be checks and balances between the institutions.

Whether Separation of Powers is followed

Legislature and Executive

Membership

-YDPA is the ceremonial executive and a part of the Parliament (Art. 44)

- PM and his Cabinet are required by the FC to be members of either Houses of Parliament.

Functions

- Executive has the power to make delegated legislation

-Executive controls Parliament. Party Whip – Executive will make sure all MPs do not oppose the Bill that needs to be passed.

Checks and Balances

- Legislature scrutinizes the executive through parliamentary procedures like question time, debates and select committees.

- YDPA acts on the advice of the Cabinet. The YDPA is guided by the FC dealing with the requirement of a Royal Assent to the Bill.

-Parliament may oust a government through a vote of no-confidence.

However,

- The Government usually has a two-thirds majority in Parliament and tends to dictate the Legislative branch

- Weaknesses of Parliamentary procedures such as question time, debates and select committees.

-Opposition lack of equal information in the Parliament

Legislature and Judiciary

Membership

-The highest court in UK was also the highest house of Parliament, House of Lords. Now the highest court in UK is Supreme Court.

Functions

- Legislature regulates its own composition and procedures like enforcement of breach of parliamentary privilege or contempt of Parliament. E.g. Stockdale v Hansard.

-Judicial organ makes law through the doctrine of judicial precedent.

-Judges are not supposed to make law. When judges make the law, they may not have made proper studies on the issue yet. Laws made by the judges are up to the personal preferences of the judge. Law made by Parliament will be balanced out because there are over 100 or 200 people in Parliament. Judge made law is automatically retrospective, can never be prospective. A judge can only make the law when the case comes to court. When the case comes to court, the event already happened.

-Judicial organ interpret statutes through differently, altering the literal meaning of the statutes. Purposive approach and mischief rule, judges may end up making law under the term of statutory interpretation.

- Parliament can pass laws that apply retrospectively in civil cases (Art.7)

-YDPA is from the Parliament, and appoints judges

Checks and Balances

-No MP can hold judicial office and vice versa to maintain independence of the judiciary

- Judiciary can declare an Act of Parliament as unconstitutional.

-Conduct of judges cannot be discussed in State Legislative Assemblies. Conduct can only be discussed in Parliament on a substantive motion of which notice has been given by not less than one quarter of the total number of members of that House

- Judiciary can control delegated legislation by declaring any subsidiary legislation inconsistent with any Act of Parliament or State Enactment void to the extent of the inconsistency.

- Parliament can pass laws to overwrite judge-made law

-Parliament can remove judges, by forming a tribunal and deciding.

Whether checks and balances are effective

- Not really, because the Executive dominates the Parliament, and the Parliament is forced to carry out its functions on behalf of the Executive. For example, passing a Bill containing policies of the Executive

Executive and Judiciary

Membership

-Indirect. Executive appoints the judges of the superior courts.

Functions

-AG who is part of the Executive, performs a judicial function,i.e. power to prosecute or not to prosecute

-Judges of Session and Magistrate courts are members of the judicial and legal service. They are transferable from the Bench to the AG’s Chambers and the government departments

- Chairpersons of administrative tribunals are not judges, but they perform the role of a judge.

- Statutory Interpretation. Judges will end up questioning policies even though they are not supposed to do so. Policies are done by the Executive. Purpose of the act can be equated to the policies.

-Under the Executive, the Home Minister can detain anyone without trial under the ISA. It prevents the courts from performing their functions.

Checks and Balances

-No Member of Executive can hold judicial office and vice versa

-Judges can only be removed from their office for misbehavior or inability to properly discharge the functions of their office

- Art.123 provides safeguards for the appointment of judges by the Executive by prescribing qualifications

- FC contains express provisions to secure independence of the judiciary from interference either from the Executive or Legislature.

Whether check and balances are effective

- Judicial powers of the Courts have been removed by the Executive

-Latent threats, the financial and other resources necessary for the judiciary to function properly is under the Executive

-PM can insist on appointment of a judge even if the Conference of Rulers disagree
-PM can pass laws inconsistent with the Constitution under Art.149 and Art.150

Whether there are overchecking and overbalancing

-Judiciary seldom performs judicial review, especially after the 1988 Judicial Crisis.

-Executive dominates the Parliament. Majority of the MPs comes from the Executive.

Promissory Estoppel (Consideration)

2011-07-26T07:21:00.001-07:00

Promissory Estoppel

There may be promises where there is no consideration but which may be given effect by the doctrine of promissory estoppels. The doctrine may apply in a situation where both parties are in an existing legal or contractual relationship and one party (A) promises to relieve another (B) of some previous obligations. In this situation, the doctrine of promissory estoppel seeks to prevent A from reneging on his promise to fully enforce A's previous rights against B. Thus, the doctrine is said to act as a defence and not as a cause of action ("as a shield but not as a sword").

For the doctrine to apply, these elements must exist:

(a) One party makes a promise with the intention that the other party should act in reliance on the promise;

(b) The promisee has acted in reliance on the promise;

The doctrine only suspends the promisor's (A) rights but does not take it away (suspensory and not extinctive). The party who had relied on it (B) is granted temporary relief until A gives further notice provided B can be put back to his original position. Otherwise, A's right may be denied to avoid the detriment that B may suffer.

Common Law position

Hughes v Metropolitan Rly Co. (1877) 2 App Cas 439

In this case, the plaintiff, the owner of a house gave the defendant, the tenant, six months notice in October to carry out repairs to the house failing which the tenancy would be terminated. In November, the landlord carried out negotiations with the tenant with a view to selling the house to the tenant. The negotiations ended in December and the tenant had not carried out repairs to the house. After the six months, the landlord brought an action to evict the tenant from the house.

The House of Lords held that the negotiations commenced by the landlord constituted a promise that as long as the negotiations continued, he would not enforce the notice for repairs to the house. The tenant had acted in reliance on the promise as he had done nothing to make repairs to the house while the negotiations were ongoing. Thus, the period of the notice should be calculated from the date the negotiations ended, and not six months from the date the notice was given. In this case, the doctrine suspended the landlord's original rights.

Lord Cairns: “ It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

In this case, the defendant rented flats from the plaintiff for 99 years for a certain rate. When World War II broke out, the plaintiff agreed to reduce the rent. The defendant paid rent according to this new rate from 1941 to 1945. At the end of 1945, the plaintiff claimed for rentals as well as arrears based on the old rate.

Lord Denning: “when one party gives a promise with the intention that the other party should act in reliance on that promise and the other party does so act, the promise must be fulfilled although no new consideration is given for the promise. The reason promissory estoppel can only be used as a defence is because no consideration has been given for that promise. The other party cannot be said to enforce a new contract because there is no new contract (for want of consideration). But the party who has suffered a detriment as a result of relying on the promise may, when the party who has given the promise brings an action against him, raise the promise as a defence to estop him.”

Malaysian position

Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331

http://www.ipsofactoj.com/archive/1995/Part04/arc1995(04)-014.htm

In this case, the appellant bought goods from Chemitrade Sdn Bhd (Chemitrade). Chemitrade entered into a factoring agreement with the respondent whereby the debts owed by the appellant to Chemitrade were assigned to the respondent. Chemitrade gave to the respondent copies of the invoices in respect of the sale and delivery of goods to the appellant. The respondent then stamped the invoices with the endorsement that any objection must be made within 14 days of receipt and sent the invoices to the appellant. The appellant did not complain within the said period nor challenge the respondent's imposition of the endorsement. After several payments on the invoices, the appellant refused to make payment on 20 invoices. The respondent argued that since the appellant did not protest about the validity of the endorsement, it was entitled to assume that the appellant had accepted it.

The Federal Court applied estoppel and held that as the appellant, Chemitrade and the respondent had proceeded upon the assumption that the factoring agreement was a valid assignment, it would be unjust and unconscionable to allow the appellant to challenge the document now. The Court further held that a reasonable person in the respondent's position would be entitled to assume that the appellant had agreed to the endorsement by remaining silent and making payment on the invoices.

This case is significant as the Federal Court clarified and restated two elements of the doctrine of estoppel, the first as to the effect which the representation had upon the mind of the person relying on the estoppel and the second, whether the person must have acted to his detriment.

Gopal Sri Ram JCA: “The traditional view ... is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way ... we are of the opinion that this requirement is not an integral part of the doctrine. All that the representee ... need to do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that "his conduct was so influenced by the encouragement or representation ... that it would be unconscionable for the representor thereafter to enforce his strict legal rights"…We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights.”

Sim Siok Eng v Government of Malaysia [1978] 1 MLJ 15,FC

In this case, the appellant was assigned to construct a building but he failed to complete it on time. The respondent had promised to supply the appellant with construction materials which were difficult to obtain. The respondent had stopped supplying these materials without notice to the appellant.

The Federal Court held that the respondent's promise to supply the construction materials was a variation of the original contract. The appellant had relied on the promise and had changed his position in reliance of it. Therefore, the original contract was suspended and if the respondent wanted the original contractual position to resume, he should give notice to the appellant.

Consideration (Contract)

2011-07-23T00:34:00.000-07:00

Past Consideration

- Section 2(d) of Contracts Act 1950

Anson in his book ‘Anson’s Law of Contract’ has explained the issue on past consideration. Anson stated that “Executed consideration must be distinguished from past consideration which is a mere sentiment of gratitude or honour prompting a return for benefits received and is no consideration at all. In the case of executed consideration, both the promise and the act which constitutes the consideration are integral and co-related parts of the same transaction. In the case of past consideration, however, the promise is subsequent to the act and independent of it; they are not in substance part of the same transaction. Thus if A saves B from drowning and B later promises A a reward, A's action cannot be relied on as consideration for B's promise for it is past in point of time." In Malaysia, both executed consideration and past consideration are good consideration.

In Common law, past consideration is not good consideration.

Re McArdle [1951] Ch 669.

In this case, a house was the joint property of a few siblings living together. The plaintiff, the wife of one of the brothers paid for repairs to the house. Then, the siblings agreed to pay her 488 pounds as the consideration for the repairs. Later, the plaintiff sued for such payment, the defendants in the suit other than her husband. The issue was whether such consideration exists.

The Court held that, as the repairs had been carried out before the agreement to pay had been made, it was past consideration and therefore not good consideration.

The rule of past consideration is not good consideration has an exception. If an act is done at the promisor’s request, although the promisor’s promise was given only after the act has been carried out, the act is good consideration.

Lampleigh v Braithwait (1615) Hob 105

the defendant committed murder and requested the plaintiff to obtain a royal pardon for him, the latter successfully doing so. Later, the defendant promised the plaintiff payment of 100 pounds.

The court held that the consideration was good because the act had been carried out at the defendant’s request.

Guthrie Waugh Bhd v Malaiappan Muthucumaru [1972] 1 MLJ 35

Sharma J: “The words 'has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing' in clause (d) of section 2 of the Contracts (Malay States) Ordinance 1950 indicate the wide ambit of the definition of 'consideration.' Past consideration, unlike in England, is quite valid in that part of our country where the Contracts Ordinance is applicable.”

Hongkong and Shanghai Banking Corporation v Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449

In this case, the second defendant argued that since no further money was advanced to the first defendant by the plaintiff at the date or after the signing of the guarantee, the guarantee was actually to secure past advances and thus was past consideration and not enforceable. The second defendant’s contention was rejected.

Ian HC Chin JC: “… past consideration can still be good consideration even if the benefit was not given at the time of the execution of the guarantee in a one-off transaction provided the benefit that was given before the execution of the guarantee was given 'at the desire' of the guarantor…”

SEA Insurance Bhd v Nasir Ibrahim [1992] 2 MLJ 355; [1993] 1 SCR 89

Gunn Chit Tuan SCJ: “The detriment undertaken by the promisee ... is a past performance and should be sufficient consideration where there is a promise in consideration of some act previously done by the promisee at the request of the promisor. In deciding whether consideration is past, the court should not take a strictly chronological view. If the consideration and the promise are substantially one transaction, as in this case, it should not matter in what order they are given. In other words, consideration itself accommodates past consideration so long as the 'desire' requirement is specified, that is the guarantee was given at the request of the indemnifier.”

GBH Ceramic Sdn Bhd v How It @ Low Aik & Ors [1989] 2 CLJ 427

In this case, the defendant guaranteed the payment of all monies and obligations of one Heng Lee Enterprise due and owing to the plaintiff under a contract for goods sold and delivered. The defendant’s contention was that consideration given by the plaintiff was void for past consideration because the goods supplied by the plaintiff were sold and delivered over a period of time before the execution of the guarantee.

The Court held that, from the letter of guarantee, it was clear that the plaintiff’s act was done at the defendant’s request.

Lau Ngiik Ping & Anor v Bank Pertanian Malaysia [1992] 3 CLJ 1437

the borrowers applied for loan from the defendants, to be secured by a charge over land owned by plaintiffs. The loan money was released by the defendants a day after the signing of the agreement. However, the memorandum of charge was executed only one month after. The plaintiffs contended that the release of monies was without security, and thus consideration was past consideration.

The Court of Appeal held that the issue could not be looked at in isolation only because the execution of the loan agreement, the release of the loan and the execution of the charge instrument took place on different dates. This letter of authorisation indicated that it was at the desire of the plaintiffs that the defendants agreed to grant the loan to the borrowers. This constituted good consideration under s 2(d) of the Contracts Act.

Aseambankers Malaysia Berhad & Ors v. Gula Perak Berhad & Anor [2010] 1 LNS 1409

In this case, the plaintiffs are lenders and provided facilities to the 1st defendant and the 2^nd defendant is the guarantor. The defendants argued that there is no consideration for the supplementary agreement.

The court held that “...it is well settled in Malaysian context even past consideration is good consideration though the position may not be the same at common law.”

Zainal Abidin Ahmad v Kenari Air (M) Sdn Bhd & Ors [2011] 1 LNS 144

In this case, the 3^rd defendant alleged that the Letter of Guarantee was void due to past consideration. The court cited the case of Hongkong and Shanghai Banking Corporation v. Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 3 CLJ 419 where the headnote reads: “...Past consideration could still be good consideration...provided the benefit that was given before the execution of the guarantee was given 'at the desire' of the guarantor.”

Constitutional Supremacy (Continuation)

2011-07-19T07:35:00.000-07:00

Constitutional Supremacy means that the constitution is the supreme and highest law of the land. The Parliament or Legislature may pass laws provided that they are in line with the constitution. Any laws in conflict with the constitution will be deemed as unconstitutional and invalid by the courts. The Federal Constitution is the written constitution in Malaysia. Article 4(1) states that “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.” A written constitution represents a higher law, not merely because it is written, but because these rules are far more difficult to amend. The Constitution is usually amendable by special majorities as opposed to ordinary or simple majorities. In Malaysia, amendments to the Constitution usually require two-thirds of the total number of members of each House of Parliament. Requirements for amendments can be found in Article 159 of the FC.

Cases on Constitutional Supremacy

Marbury v Madison

President John Adams, before his term ended, had made many federal appointments, including William Marbury as justice of the peace in the District of Columbia. Thomas Jefferson, the new president, refused to recognize the appointment of Marbury. The normal practice of making such appointments was to deliver a "commission," or notice, of appointment. This was normally done by the Secretary of State whom at the time was James Madison. At the direction of Jefferson, Madison refused to deliver Marbury's commission. Marbury sued Madison, and the Supreme Court took the case. Chief Justice John Marshall wrote that the Judiciary Act of 1789, which spelled out the practice of delivering such commissions for judges and justices of the peace, was unconstitutional because it the gave the Supreme Court authority that was denied it by Article III of the Constitution. Thus, the Supreme Court said, the Judiciary Act of 1789 was illegal and not to be followed.

This was the first time the Supreme Court struck down a law because it was unconstitutional. It was the beginning of the practice of "judicial review."

Chief Justice Marshall explained the power of the constitution:

" It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "

Ah Thian v Government of Malaysia

Suffian L.P observed : " The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution written law may be invalid on one of these grounds: (1) Art 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Art 75".

Mamat bin Daud & Ors v Government of Malaysia

In this case, the application for leave under Article 4(4) arose as to whether Sec 298A of the Penal Code and Criminal Procedure Code were ultra vires the Constitution being in excess of the legislative power of the Parliament.

Mohamed Azmi SCJ : For the applicants to succeed, they must satisfy the court (a) leave is necessary under Art 4(4) & (b) they have an arguable case in that the application is not frivolous. Since the present application was not considered frivolous by the court, it allowed the applicants to canvass their case before the full court on the constitutionality and validity of the new section.

PP v Dato' Yap Peng

Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General

Cases involving inconsistency with the Constitution

Phang Chin Hock v Public Prosecutor

Federal Court held that "The rule of harmonious construction in construing Article 4 and Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in Article 159 are valid even if inconsistent with the constitution".

Loh Kooi Choon v Government of Malaysia

Federal Court rejected the argument that the Constitution as the Supreme law cannot be inconsistent with itself. In this case, Parliament amended Article 5(4), denying persons detained under restrictive residence law, right to production before a Magistrate. The amendment was given retrospective effect to independence day.

Parliamentary Sovereignty v Constitutional Supremacy

2011-07-19T02:09:00.001-07:00

1. Parliamentary Sovereignty

The definition of parliamentary sovereignty in its basic form simply means that the Parliament is supreme and has unlimited law-making power. The Parliament may enact, amend or repeal any law as it wishes. This concept is practised in countries without a written constitution. For example, United Kingdom.

The concept of Parliamentary Sovereignty is best explained under AV Dicey's 3 postulates

i) Parliament is legally competent to legislate upon any subject matter

ii) No Parliament can bind its successors nor be bound by its predecessors

iii)Once Parliament has legislated, no one can question the validity of the legislation

Application of Dicey's 3 postulates

1st Postulate

- Resignation of King Edward VIII in UK. King Edward wanted to marry an American divorcee, Wallis Simpson but the marriage would be deemed morally unacceptable because remarriage after divorce was opposed by the Church of England. However, King Edward chose to marry Simpson, thus he would be abdicated. The Parliament then had to enact such law as there were no law regarding the abdication. Therefore, His Majesty's Declaration of Abdication Act 1936 was passed. Under the Act, King Edward may no longer be king and the generations after his may no longer be king.

- Burmah Oil Company v Lord Advocate 1965

During the World War, Japan conquered Burmah and the British ran away but they burnt all of the oil rigs to prevent the Japanese from obtaining the oil. After the war, Burmah Oil Co. sued the British government for compensation. The House of Lords decided that the British government has to pay compensation to Burmah Oil Co. because the oil was not destroyed during the war. The government immediately introduced into Parliament the War Damage Bill to nullify the decision. War Damage Act 1965 states that in future, any damage done during the war whether during the actual battle or not during battle, compensation will not be paid. The House of Lords' decision was overturned by the passing of the Act by Parliament.

- In 1991, the British government tried to pass an act known was War Crimes Bill to punish whoever committed crimes during the 2nd World War. Any of the British soldiers who had committed crimes such as rape,molest,etc are to be punished. However, the people opposed and the government couldn't pass the law.

- Septennial Act 1715.

Parliament can also extend or shorten their own 'life' in the Parliament. In the past, the Parliament has done so, extending from 5 years to 7 years, but it is back to 5 years.

- Mortensen v Peters 1906

Those in the United Kingdom who wishes to do fishing must apply for a license from the Fisheries Department. There was also can international law which says that countries can only regulate their own territories up to 10 miles outside their shore. Up to 10 miles from the beach, and after that it is considered as international waters regulated by international laws even though it is under UK territory. In this case, the person was fishing in the sea and he was outside 10 miles without a licence. UK government charged him for fishing without a licence. The UK law did not apply to him because he was not in UK territory and international law didn't ask for any licence. However, the Court held that an Act of Parliament is the highest and will overwrite international law if they want to.

2nd Postulate

- Vauxhall Estates Ltd v Liverpool Corporation

In this case, the government wanted to purchase a piece of land from Vauxhall Estates. The Government needs to pay compensation to purchase the land. At the time, there were two different schemes of compensation from The Housing Act 1925 and the Acquisition of Land (Assessment of Compensation) Act 1919. The 1925 Act did not mention anything about the earlier Act. Section 7(1) of the 1919 Act provides that compensation cannot be amended by future Parliaments. The Court decided that the later Act will always prevail over the previous Act. The earlier Act can never bind the future Act. Thus, the Parliament is always supreme.

- Ellen Street Estates v Minister of Health

The facts of this case are similar to Vauxhall Estates'. However, the lawyer in this case tried to circumvent the previous case. It was argued that under normal circumstances, the later Act will always prevail over the earlier Act. However, the circumstance in this case is not normal because the earlier act says that this act will be applicable forever. If that is the situation, then the only way for the later act to repeal the earlier act is by mentioning expressly to repeal the earlier act. The Court held that the lawyer's argument is wrong because the Parliament can always expressly or impliedly repeal an act. There are 2 ways for the Parliament to repeal the earlier laws; by the doctrine of express and implied repeal.

3rd Postulate

- Pickin v British Railways Board

In this case, there was an Act of Parliament that says that for every carriage of train that goes through a person's land, the person will be compensated. The British Railways Board proposed a Private Members Bill into the Parliament to remove such compensation. The Bill went through Parliament and became an Act. Pickin was an owner of a land where carriages of train would go through. After the passing of the Act, he would not receive any more compensation. He brought an action in court saying that certain procedures were not followed. After the 1st and 2nd reading, the Parliament was supposed to inform those who would be affected by the Bill so that they could defend their own rights. Court held that once a Bill becomes an Act, we cannot enquire into the validity of the Act. Even if a Bill did not go through the 2nd or 3rd reading, the Act still cannot be questioned.

Acceptance and the Requirement of Acceptance(popular topics)

2011-07-15T20:50:00.001-07:00

Section 7(a) of the Contracts Act that “in order to convert a proposal into a promise the acceptance must be absolute and unqualified”

In section 7(b) of the same Act, the acceptance must “be expressed in some usual and reasonable manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in that manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance”

This principle of acceptance was stated in The Ka Wah Bank Ltd v Nadinusa Sdn Bhd & Anor [1998] 2 MLJ 350, FC.

According to Chitty on Contracts, 26th Ed (1989) Vol 1, para 54, p 44, 'an acceptance is a final and unqualified expression of assent to the terms of the offer'. But, where the reply is qualified or attempts to vary the terms of the offer or attempts to accept an offer on new terms (not contained in the offer), then such a reply is not a communication of an acceptance but may be a rejection accompanied by a counter-offer which the original offeror can accept or reject.

1. Counter offer by the offeree

Hyde v Wrench [1840] 3 Beav 334

Facts: the defendant on June 6 wrote to the plaintiff offering to sell his farm for 1,000 pounds. The plaintiff immediately called and offered the defendant 950 pounds for the purchase of the farm. On June 27, the defendant replied to the plaintiff, unable to accept the plaintiff’s offer. Upon receipt of the letter on June 29, the plaintiff immediately wrote to the defendant accepting the defendant's earlier offer of 1,000 pounds. The issue was whether a contract has been concluded between the parties.

The court held that there was no binding contract. The plaintiff did not absolutely and unconditionally accept the defendant's offer price of £1000. By proposing a different figure of £950, the plaintiff had rejected the defendant's offer and now makes a new offer (a counter-offer). This counter-offer destroys the original offer

Lord Langdale MR: “… there exists no valid binding contract between the parties for the purchase of the property. The defendant offered to sell it for £1000, and if that had been at once unconditionally accepted, there would undoubtedly have been a perfect binding contract; instead of that, the plaintiff made an offer of his own, to purchase the property for £950, and he thereby rejected the offer previously made by the defendant.”

Malayan Flour Mills Bhd v Saw Eng Chee (Administrator of the estate of Saw Cheng Chor, deceased) & Anor [1997] 1 MLJ 763.

Facts: In the instant case, by proposing to purchase all the four lots, the plaintiff's managing director Teh Liang Teik had in fact taken upon himself not only to vary the term but also subject matter of the original offer.

The court held that the offeree's intention to accept must be conclusive and he must not treat the negotiation between the parties as still open to the process of bargaining. He must unreservedly assent to the exact terms of the offerer. If while purporting to accept the offer as a whole, he introduces a new term which the offeror has not the chance of examining, he is in fact making a counter-offer. The effect of this in the eyes of the law is to destroy the original offer.

Stevenson, Jaques & Co v McLean (1879-1880) 5 QBD 346

Facts: the parties were negotiating for the sale of iron and ultimately the defendant wrote to the plaintiff fixing 40s, per ton, net cash, as the lowest price, and stating that he would hold the offer open till the following Monday. The plaintiffs on Monday morning telegraphed to the defendant: "Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give". The defendant didn’t reply and on the same day he sold the iron to someone else and telegraphed the plaintiffs at 1.25 p.m. that he had done so. Before the telegram arrived, the plaintiffs found a purchaser for the iron at 1p.m. and sent a telegram at 1.34 p.m. to the defendant saying that they had secured his price.

Lush J: “...Here there is no counter proposal. The words are, 'Please wire whether you would accept forty for delivery over two months, or, if not, the longest limit you would give.' There is nothing specific by way of offer or rejection, but a mere inquiry, which should have been answered and not treated as a rejection of the offer.”

3. Acceptance made “subject to contract” or to fulfil condition precedent

In commercial documents, phrases such as ‘subject to contract’, ‘without prejudice’ or ‘a formal agreement would be prepared and executed’ are commonly found. The issue is whether those statements constitute a valid acceptance bringing forth legal obligation to the parties. There are two main approaches to this issue. Firstly, that there is no contract and the court will construe such words as to postpone liability until the formal document is signed. The second approach is that the parties have already entered into a legally binding contract and the execution and signing of the document is a mere formality.

Daiman Development Sdn Bhd v Mathew Lui Chin Teck & Anor Appeal, 1978] 2 MLJ 239, FC; [1981] 1 MLJ 56, PC

It was held that “the express terms of the purchase contained in the booking pro forma were not made "subject to contract". The clauses pointed strongly towards obligations presently accepted rather than to a suspension of obligations until some further event or agreement had occurred or been made”.

Art-Is At Work Sdn Bhd v Sony Music Entertainment (M) Sdn Bhd [2000] 5 CLJ 559

Abdul Malik Ishak J: "...The court must determine whether the parties had already entered into a legally binding contract where the execution of the written contract is merely a formality or whether the parties intended that their rights and obligations under the contract should be suspended until the formal and legally binding contract is finalised and executed".

Kam Mah Theatre Sdn Bhd v Tan Lay Soon, [1994] 1 MLJ 108, SC

Facts: the alleged contract contained a proviso that the agreement shall incorporate ‘other usual terms and conditions’.

The Court held that the formula "subject to contract" gives rise to a strong presumption of the necessity of a further formal contract. Cogent evidence is required to displace this strong presumption. On the facts, the Court held that there was no contract at all and that the document was dependent on the signing of a formal contract to be further negotiated and approved by both parties.

Lim Chia Min v Cheah Sang Ngeow & Anor [1997] 2 CLJ 337, FC

Federal Court held that when the parties "proposed that a formal agreement would be prepared and executed", they must have meant what they said.

Pengurusan Projek Daya Sdn Bhd & Anor v. Konsortium Lapangan Terjaya Sdn Bhd [2011] 1 LNS 210

The issue of this case is whether for the purpose of submitting a proposal to the Government on the Privatisation Project there was an oral agreement between the plaintiffs and the defendant that the work done by the plaintiffs would be carried out on a 'success bid' basis in the terms as pleaded.

The court held that “…the parties were still negotiating the terms of the appointments of the Plaintiffs. The appointments of the plaintiffs were subjected to a final and formal agreement between the parties…”

Prism Leisure Sdn Bhd v Lumut Marine Resort Bhd 16 [2002]5 CLJ 391

Abdul Malik Ishak J: “Even in the absence of a "formal agreement", ... the courts have on numerous occasions found that the parties were at consensus ad idem even though the formal agreements have yet to be executed … In the context of the present case, it was my judgment that the requirement of a 'formal agreement' was merely intended as a solemn record of an already complete, valid, legal and binding contract...”

The Court held that there was a valid, legal and binding contract between the parties and that the defendant had breached that concluded contract.

Charles Grenier Sdn Bhd v Lao Wing Hong [1996] 3 MLJ 327, FC

The Federal Court held that the phrase "subject to the sale and purchase agreement" relating to two shophouses did not point to an intention that no contract was to come into existence until a formal sale and purchase agreement had been prepared and executed.

Diamond Peak Sdn Bhd & Anor v Dr Tweedie [1982] 1 MLJ 97

The court held that “I found on the evidence, both oral and documentary, that there was an offer by the defendant and a definite acceptance by the plaintiffs constituting a binding agreement.”…and the use of the words "the technical details I leave to my lawyers" were in my judgment and I so found, to use the oft-quoted words of Parker J…"a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through".

Contract Law - Invitation to treat (popular topics)

2011-07-15T20:08:00.001-07:00

Offer and Invitation to treat

An offer should be distinguished from an invitation to treat. Unlike an offer, an invitation to treat is a statement which is not intended to be binding at law. An invitation to treat merely invites interested parties to make an offer. Invitations to treat often appear in the form of advertisements, display of goods and tenders. Other aspects considered are auctions and applications for club membership.

1. Advertisements

Whether an advertisement is an offer or an invitation to treat is a question of the intention of the party placing the advertisement. In most cases, advertisements are treated as attempts to induce offers unless on exceptional facts situations as in Carlill’s case (example of advertisements of unilateral contracts which will usually be held as offers).

Carlill v Carbolic Smoke Ball Co [1892] 2 QB 484,QB; [1893] 1 QB 256, CA

Facts : The defendant issued an advertisement offering to pay £100 to any person who contracted influenza after using the smoke ball in a specified manner for a specified period. The advertisement stated that the defendants had deposited £1,000 with bankers to show their sincerity. The plaintiff, after seeing the advertisement, bought and used the ball in the manner prescribed caught influenza. The plaintiff sued the defendants for £100.

The Court of Appeal held that an offer can be made to the world. In this case, there was an acceptance of the offer by the plaintiff's conduct.

Partridge v Crittenden [1968] 1 WLR 1204

Facts : In this case, the appellant inserted in a magazine an advertisement containing the sale of cocks and hens and was inserted under the general heading of "Classified Advertisements" and nowhere was any direct use of the words "offers for sale". The respondent answered the advertisement and enclosed a cheque. The issue was whether the advertisement he inserted was an offer for sale or an invitation to treat.

The court held that it was an invitation to treat.

Ashworth J : “…in my judgment the law of the country is equally plain as it was in regard to articles in a shop window, namely that the insertion of an advertisement in the form adopted here under the title "Classified Advertisements" is simply an invitation to treat.”

Coelho v The Public Services Commission [1964] MLJ 12

Facts : the appellant applied for the post of Assistant Passport Officer advertised in the newspaper. Subsequently, he was informed that he was accepted and after being posted to the Immigration Office, he was informed that his appointment was terminated forthwith by payment of one month’s salary in lieu of notice. He applied for a certiorari to quash the decision.

The Court held that the resulting applications were an invitation to qualified persons. The resulting applications were offers. The information conveyed to the appellant was an unqualified acceptance. Therefore, the respondent had acted ultra vires in purporting to terminate his appointment.

MN Guha Majumder v RE Donough [1974] 2 MLJ 114

Facts : An advertisement appeared in the Sarawak Tribune for the sale of the defendant’s house. The plaintiff inspected the house twice and a number of telephone conversations took place between the plaintiff and the defendant's agent. The plaintiff alleged that the defendant had accepted his offer to purchase the house, but the defendant denied it.

The Court held that there was no contract in existence between the parties at the material time as there was no clear intention of the parties to enter into a formal legal relationship from the evidence adduced.

2. Display of Goods

The reason behind this rule is that to hold otherwise would require a seller to sell whatever quantity of the item displayed even if he has insufficient supplies; while the buyer cannot also change his mind once an item is chosen and is taken off the display shelf.

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401, CA,

Facts : the defendants carried business in the retail sale of drugs. On entering the shop, the customer was provided with a wire basket; and having selected the items which he wished to buy, would put them in the basket and take them to the cashier's desk at the exit, where the cashier would state total price and receive payment.

The Court of Appeal held that the display of goods on the shelves was only an invitation to treat. It was for the customer to offer to buy the goods. The contract of sale was completed when the customer's offer to buy was accepted by the seller in receiving the payment at the cashier's desk.

Fisher v Bell [1961] 1 QB 394

Facts: The issue in this case is whether the shopkeeper's display in his shop window of a "flick knife amounted to an offer of the knife for sale contrary to s 1(1) of the Restriction of Offensive Weapons Act 1959.

The Court held that it is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.

3. Tenders

Invitations to tender are not normally considered to be offers unless accompanied by words that the highest tender will be accepted.

Spencer & Ors v Harding & Ors (1869-1870) LR 5 CP 561

Facts: the defendants issued to the plaintiffs and other persons in the wholesale trade a circular regarding the wholesale trade for sale by tender. The plaintiffs sent in a tender which turned out to be the highest tender; but it was not accepted.

The Court held that the circular was only an attempt to ascertain whether an offer could be obtained. Further, there was a total absence of any words to the effect that the highest bidder would be the purchaser.

Willes J: “...Here there is a total absence of any words intimate that the highest bidder is to be the purchaser. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the sellers are willing to adopt.”

Blackpool and Fylde Aero Club v Blackpool BC [1990] 3 All ER 25, CA

Facts: In this case the defendant council owned an airport. It granted concessions to operate flights. It sent an invitation to tender to the plaintiff and six other parties all of whom were connected to the airport. The invitation to tender stated that the tenders were to be submitted in the envelope provided and before the deadline and that late tender would not be considered. The plaintiff sent the tender in time to the post box but the post box was not cleared. The tender was marked late when it reached the defendant was not considered. The issue was whether there was a contract between the parties.

The Court of Appeal held that in the circumstances, an invitation to tender can give rise to a binding obligation to consider tenders which conform with the conditions of the tender. It was only right that the tenderer who submitted a tender conforming to the deadline should have it considered.

Bingham LJ: “...if he submits a conforming tender before the deadline he is entitled, not as a matter of mere expectation but of contractual right, to be sure that his tender will after the deadline be opened and considered in conjunction with all other conforming tenders or at least that his tender will be considered if others are.”

Cheng Keng Hong v Government of the Federation of Malaya [1966] 2 MLJ 33

Facts: In this case, the respondent issued a notice inviting tenders to build a school. The appellant tendered for the work and his tender was accepted and a contract was entered into.

High Court held that the unconditional acceptance of the tender by the respondent bound both parties and a contract was formed.

Azlan J: “The law with regard to acceptance of a tender is perfectly clear. The unconditional acceptance of a tender by the employer binds the parties, and a contract is thereby formed, the terms of which ascertainable from the invitation to tender, the tender, the acceptance, and any other relevant documents...”

Rule of Law

2011-07-12T19:57:00.000-07:00

The principle of the 'rule of law' can be traced back to the writings of philosophers in ancient Rome and Greece. For example, Aristotle said that 'the rule of law is preferable to that of any individual'. He argued that government by laws was superior to government by men. Basically, the rule of law embodies the basic principles of equal treatment of all people before the law, fairness and both constitutional and actual guarantees of basic human rights. It implies the supremacy of law and that all laws must conform to certain minimum standards for instance protection of civil liberties. The concept of 'rule of law' is most popularly explained by AV Dicey in his 3 postulates.

Narrow definition: The rule of law means everyone must follow the rule of the regimes.

Wider definition: The law is supreme and that all laws must conform to basic standards of human rights.

Friedrich Von Hayek

: "... stripped of all technicalities this means that government in all its action is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge."

AV Dicey

1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. The rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

2) No man is above the law; every man and woman, whatever be his or her rank or condition; from the Prime Minister to the tax collectors, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

3) People's rights are better protected under the Common law than under any document which purport to give rights.

Application of the concept in Malaysia

Article 4 of the FC is to establish the Constitution as the basis of the 'rule of law'

Article 8(1) & (2) advocates for equality irrespective of rank, status or gender.

Case laws:

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187

- Raja Azlan Shah observed that 'The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: fundamental rights, federal division of powers and separation among the executive, legislature and the judiciary...expressed in modern terms that we are government by laws, not men".

PP v Mohamed Ismail [1984] 2 MLJ 219

- the defendant was charged with drug trafficking punishable with life imprisonment or death under S.39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended providing a mandatory death penalty. The Public Prosecutor invited the court to impose the enhanced penalty

- The Court refused and held that the amendment could not apply to the defendant's case as it was enacted after the offence was committed.

Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265

- the order of detention stated a number of grounds on which the detainee was apprehended with the word 'or' and not 'and' in between.

- The court held that the statement of grounds in the alternative denied the detainee his constitutional right to know precisely the reason why he was being arrested.

Chai Choon Hon v Ketua Polis, Daerah Kampar [1986] 2 MLJ 203

- A condition, attached to a police permit to hold a DAP dinner, that there should only be seven speakers, was struck down because the permit already imposed a time limit, which rendered the condition unnecessary.

Whether the concept of Rule of Law is applicable in Malaysia ( Based on Dicey's 3 limbs/postulates)

The rule of law is inapplicable in Malaysia under each postulate:

1st part of the 1st Postulate

- The existence of the Internal Security Act 1960. The Act was first introduced to curb communist threat in Malaysia. The Home Minister is given the discretion to detain a person for 2 years without a trial. If the order ends, the HM can order for the person to be detained again; possibly indefinite. The Act was passed under Article 149 of the Federal Constitution which allows the passing of Acts against subversion, allowing the suspension of Article 5,9,10 and 13 relating to the citizen's rights. Persons detained under ISA are allowed to file a petition of Habeas Corpus and also to apply for judicial review. However, the judge will only see whether the order was properly served on the person and whether the order is valid or not. As long as it is properly served and the order is valid, then the court cannot question the order.

- Next, is Article 150 which allows the YDPA to proclaim emergency at the advice of the Prime Minister. During the Emergency, almost all Articles of the Federal Constitution will be suspended, meaning that the rights of the citizens can be violated. The Parliament can pass laws to restrict the rights of people even if it contradicts the Federal Constitution.

- The government can also acquire a person's property if they want to. Article 13 gives the right to own property. However, Article 13 also provides that the government can compulsorily acquire the property provided that they award reasonable compensation. The judges are not allowed to question such order.

- Parliamentary privilege is also against the 1st postulate of Dicey's. Under such privilege, the parliament has the freedom of speech, immune against civil arrest and is able to punish both members and non-members for breach of privilege and contempt of Parliament. Contempt of Parliament is hard to define as it is wide enough to include almost everything. For example, a person shouting outside the Parliament can also be punished for contempt of Parliament. If the Parliament chooses to punish a person for contempt of Parliament, the Parliament will be the one punishing the person, and can even detain him until the end of the Parliament's session. In Stockdale v Hansard, Hansard printed and published a report stating that an indecent book published by Stockdale was circulating in Newgate. Stockdale sued Hansard and won. Hansard was ordered not to pay for damages by the House and sought refuge there. Sheriff of Middlesex was sent to levy execution on Hansard's property. The House of Commons had the Sheriff arrested and imprisoned for contempt of House.

2nd part of the 1st Postulate

- The Prime Minister has wide arbitrary and discretionary power. The PM has the power to appoint the judges by advising the YDPA, choose the ministers to be in the Cabinet, sack ministers. The Cabinet is chosen by him, thus, the Parliament consists of members mostly from his party. Therefore, the PM is able to introduce new Bills that will definitely pass as laws since his political party is the majority in the Parliament. No one is able to control the PM. The PM can advise the YDPA to declare emergency and no one can question the declaration of emergency or the laws passed during the emergency. The Prime Minister also appoints the Attorney General by advising the YDPA.

- The Home Minister has the power to determine whether or not to arrest and detain a person under the Internal Security Act. No one has the power to question him. Theoretically, the HM can detain the PM, but in reality, it will never happen.

- The Attorney General has wide discretionary powers in Criminal issues. He can determine whether to prosecute a person or not in criminal matters and nobody can question his decision. Such discretionary powers will lead to injustice especially if he chooses not to prosecute an actual criminal.

- The YDPA has the power to pardon offenders and no one is able to question his authority in pardoning offenders.

- The Police in Malaysia through the Police Act has wide discretionary powers. Police officers can determine whether or not to arrest a person. They have absolute discretion on whether to give permits to assemblies. The Courts can quash the decision of the police if there is an error in the procedure of applying for the licence in the part of the police. However, after the Judicial Crisis of 1988, the court's judicial review is very slow. The Police can also choose to stop any car and to hold roadblocks.

- The Immigration department has the power to choose whether or not to give out passports. After the judicial crisis, the judges do not question the decisions anymore.

2nd Postulate

- The YDPA and the Sultans are not subjected to the ordinary courts, but a special court is set for them. After the 1993 constitutional crisis, the Sultans are no longer immune.

- The soldiers are also not subjected to the ordinary courts but the Court-martial. They are subjected to more laws as compared to regular citizens.

- The foreign diplomats in Malaysia are above the law; they cannot be charged for any crime committed in Malaysia.

- The judges are also free from certain laws when they are sitting in the court.

- The court system in Malaysia is also not in accordance with the rule of law since there is the Syariah Court system and the ordinary court system. The Syariah court only deals with Islamic matters pertaining to Muslims. In order to uphold the rule of law, a country cannot have 2 different court systems.

- Administrative Tribunals are also against the 2nd postulate. The tribunals deals with certain issues and they are not part of the courts(judiciary). They belong to the executive branch.

3rd Postulate

- The courts are supposed to uphold the rights of persons. The Federal Constitution does not ensure that the judges can play their roles properly; it is up to the judges themselves. The best way to ensure that rights are protected is to have a document giving positive rights and also judges that are willing to protect the rights of the people.

Joseph Raz's 8 Principles on the Rule of Law and its application in Malaysia(Briefly)

1)All laws must be prospective, open and clear

- Judicial decisions are generally retrospective in nature, because the judges' decision is only arrived at after a case has been brought to court. A person might commit a crime non-existent before the judge's decision and yet punished for it like in the case of Shaw v DPP

Shaw v DPP

- The defendant published a booklet called Ladies' Directory advertising the names and addresses of prostitutes. Shaw was convicted on a charge of corrupting public morality even though such offence was not existent at the time he published the booklet.

2)All law must be stable and not constantly changed.

- In Malaysia, the laws are not stable since the constitution has been amended at least 650 times since Independence. In US, the constitution has only been amended 8 times in 90 years.

3) Law-making process must be open, stable and clear.

- In Malaysia, the Parliament is controlled by the Executive. The Bills passed are not properly debated since the PM can use the party whip to ensure that Bills go through.

4) Judiciary must be independent.

- The 1988 Judicial Crisis clearly shows that the judiciary isn't independent since the PM was able to sack the Chief Justice Tun Salleh Abas and 2 other judges. Ever since the crisis, the constitution has been amended to divest the judges of 'the judicial power of the federation' and to grant them 'judicial powers' as Parliament might grant them. Thus, the Constitution does not protect the judges.

5) Natural justice must be observed

- Nemo iudex/judex in causa sua ( No one should be a judge in their own cause)

- Audi Alteram Partem (Hear the other party)

6) Courts must carry out judicial review.

- The Constitution is silent on Judicial Review, even more since the Judicial Crisis of 1988.

7) Courts must be easily accessible

- The courts are too expensive, slow and the cases get delayed( up to many years)

8) Crime prevention agencies must not have too wide discretionary powers.

- Too many discretionary powers are given under the Police Act 1967, i.e. power to grant permits, hold roadblocks,etc

Distinctive Features of the Malaysian Constitution

2011-07-12T09:49:00.001-07:00

The Malaysian Constitution cannot be accurately described or understood without making reference to its history. The Constitutional development has been influenced inter alia, by pre-colonial indigenous traditions of sovereignty, colonial conceptions of executive authority, indirect rule, federalism and social concerns during the immediate pre-independence and post-independence period.

(a) Position of Islam

Article 3(1) of the Federal Constitution provides that " Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation." Even though Islam is adopted as the official religion of the Federation, Malaysia is not an Islamic state. The Federation is not an Islamic State according to the White Paper on the Constitutional Proposals for the Federation of Malaysia stating that it is a secular state. Ex Prime Minister Tunku Abdul Rahman further suggests that the Federation is not an Islamic state. He stated it in the Federal Legislative Council that "...this country is not an Islamic state as it is generally understood. we merely provide that Islam shall be the official religion of the State".

Che Omar bin Che Soh v PP [1988] 2 MLJ 55

- Court held that though Islam is the religion of the Federation, it is not the basic law of the land and Art. 3 imposes no limit on the legislative power of Parliament.

Ainan bin Mahmud v Syed Abubakar bin Habib Yusoff & Ors [1939] MLJ Rep 163

- Court held that the Evidence Act applies to the exclusion of Islamic law

Meor Atiqulrahman bin Ishak & Ors v Fatimah binti Sihi & Ors [2006] 4 CLJ 1

- The court by majority ruled that it is not everything that the Prophet did or the way he did it that is legally or religiously binding on Muslims or preferable and should be followed. From the Federal Court's decision, it would appear that freedom of religion does not extend to rituals that are considered to be optional i.e wearing of turban

Halimatussaadiah binti Haji Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61

-The issue was whether the wearing of purdah is an Islamic injunction ought to be followed strictly by Muslim women

- The court held that "...The wearing of the purdah has nothing to do with the appellant's constitutional right to profess and practice her Muslim religion"

Article 3 of the Federal Constitution must be read with Article 11. Although Art. 3 provides for the freedom of religion, Art. 11(4) limits such freedom as propagation of missionary activity among Muslims may be regulated by States and Federal Laws. Article 11(5) states that all religious freedom is subjected to public order, public health, and morality whereas Article 12(4) provides that the religion of a person under 18 years is to be decided by his or her parents or guardian.

Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 301

- Court held that the conversion of a 17 year old Buddhist girl to Islam without her parents' consent was of no effect.

(b) Special Position of Certain Classes

Under the Federal Constitution, a special treatment is accorded to the Malays and the indigenous people of Sabah and Sarawak. Article 153 of the FC assigns the YDPA with the responsibility of protecting the special positions of the Malays and indigenous communities of Sabah and Sarawak. This responsibility is carried out in accordance to the Cabinet's advice. Besides that, the YDPA may, in order to promote purposes of Article 153, reserve such proportion as he deems reasonable of positions in public service; scholarships; educational and training privileges or facilities; permits or licences for the operation of any trade or business; and places in institutions of higher learning.

It must be noted that the 'special privileges' accorded to the Malays and indigenous people are actually in line with the spirit of the Federal Constitution. It is not in conflict with Article 8(1) which provides for equality before the law due to the exceptions expressly stated in such Article. The funny thing about Article 153 is that in most constitutions, special privileges will be accorded to the minority whereas in Malaysia the majority is accorded with special privileges.(due to the agreement before Independence) Article 160(2) also defines the term 'Malay' as someone professing the religion of Islam, habitually speaks the Malay language, conforms to Malay custom, etc. Article 161(A) defines 'indigenous people in Sabah & Sarawak as from communities of Bisayah, Sea Dayak(Iban), Land Dayak(Bidaya), Melanau,etc. These Articles are unique because most constitutions in the world including U.S do not define a race. If a Non-Malay satisfies the conditions set out in Article 160, then he or she can also become a Malay.

(c) National Language

Article 152 of the FC provides that the national language is Malay(Bahasa Malaysia), which implied that it must be used for official purposes. However, The Constitution (Amendment) Act,1971 as provided by Article 152 may no longer be questioned, it being considered sensitive. This amendment is unique as the questions relating to national language would be deemed sensitive, different from other constitutions. 'Official purpose' refers to all dealings with the or by the government whether Federal or State government including the public authorities. 'Public authorities' would include the YDPA, the Rulers or State governors, the Federal and State governments, local authorities,etc. If Bahasa Malaysia is the national language, then what about the previous decision of the federal government policy to use English as a medium of teaching in Mathematics and Science?

Article 152 has an exception, where the YDPA may allow the use of English. For example, communicating with foreign governments or international organisations and also for training conducted by overseas experts for Inland Revenue Department, work relating to accounting, computer, interpretation,etc. Section 4 of the National Language Act 1963/1967 allows the YDPA to permit the use of English Language for such official purposes as may be deemed fit. No one is prohibited or restricted from using, teaching or learning other languages. The constitution allows public fund to be used for the use and promotion of languages of other communities in the Federation. However, languages other than Bahasa Malaysia and English cannot be used as the official medium of instruction in universities.

Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 HC * [1982] 2 MLJ 243 FC

- The appellant applied for the setting up of the Merdeka University that will use Chinese Language as the sole or main medium of instruction.

- The Federal Court held that as the university would be using the Chinese language( considered official by the court) the government was right in rejecting the applicant.

Articles 161 and 161(e) of the FC provides for the use of English and native languages in Sabah and Sarawak. Further limitations are imposed while addressing the usage of Bahasa Malaysia in Sabah and Sarawak. The National Language Act 1963/1967 does not apply to East Malaysia.

(d) The Monarchy or the Malay Sultanates

In Malaysia, the YDPA and the Rulers assume the symbolic role in relation to the legislative and executive acts. These are powers that are generally formal. The law does not expect them to rule in person or to seek control of the day to day administration of government in their States. For example. Article 40(1) & (1A) provides that the King is a constitutional monarch who is bound by the advice of the Cabinet in the entire range of his functions except as to the few matters mentioned in Article 40(2). Such limitation of powers is good in the sense that the YDPA wasn't elected by the people, thus he does not represent them. There are occasions where the YDPA may assert independence such as the appointment of government and the dissolution of the Parliament to pave way for elections. Under Article 40(2)(b), the YDPA can reject the Prime Minister's advice to dissolve the Parliament.

The Conference of Rulers comprising of all the Sultanates may play a crucial role in certain amendments to the constitution, such as the provision on Malay privileges, Islam and Malay Language( Article 38). The Monarchy in Malaysia plays the role of a protector; something that they indicate that they may, when the circumstances warrant, assume more than just a formal or symbolic role.

(e) Citizenship

The concept of citizenship in Malaysia originates with the formation of Malayan Union. Prior to that one had the concepts of state nationality and British nationality or, later citizenship of the UK colonies. As a result of the 'social contract' between the various races, millions of migrants where bestowed with citizenship by the Merdeka Constitution. Under the Federal Constitution, there are four ways through which citizenship can be acquired, namely, by birth and descent(Art.14), by registration(Art.15), by naturalisation(Art.19), and by incorporation of new territory into the Federation(Art.22)

Citizenship provisions are so deeply entrenched that under Articles 159(5) & 161(E), any amendment to such provisions requires a special two-thirds majority in Parliament plus the consent of the Conference of Rulers and of the Governors of Sabah and Sarawak. Even when emergency is declared, Article 150(6A) prevents any tampering with citizenship rights. Citizenship can also be terminated by renunciation or deprivation. Renunciation of citizenship can be rejected by the Federal Government in times of war to prevent citizens from escaping conscription and compulsory service for national purposes permitted under Article 6(2). Deprivation of citizenship is dealt with in Articles 24(1),25,26(1)(2),etc. There are also safeguards under Article 26B(2), 27(2),24(2),etc.

Concept of Constitutionalism

2011-07-12T09:23:00.000-07:00

Constitutionalism is a concept under public law that recognises both the necessity of government and freedom of the individual. It places limitations on the powers utilised in governing the governed. In other words, it is the balance between rights of citizens and the rights of the government over the citizens; and such balance is a never ending process. Constitutionalism may also appear as rules which establish and regulate the government. It is essentially an ingredient that makes up the general framework of the rule of law, developed by constitutional thinkers partly to establish an equilibrium between the major organs of governments. It could also be understood as a concept comprising of two key elements; rights provisions and structural provisions. Rights provisions consist of safeguards for all rights citizens should possess such as freedom of speech,association and etc. Structural provisions deal with the structure of the government including separation of powers, representative system, etc. To summarise, the government must be limited in its powers and accountable to its actions.

Definition by jurists:

de Smith: "it involves the proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content".

Basic principles to uphold constitutionalism

1. Rule of law

-Rule of law means that the law is supreme and that all laws must conform to basic standards of human rights

- This concept doesn’t really apply in Malaysia. AV Dicey’s 3 limbs are best used to analyse its application

AV Dicey – No man is punishable in body or in goods except for a distinct breach of law before the ordinary courts of the land

For e.g. Under ISA, the Home Minister can detain a person for 2 years without trial and if the order ends, he can detain the person again, possibly indefinite.

- The rule of law is contrasted with any wide arbitrary or discretionary powers

For e.g. the Attorney General has the power to determine whether or not to prosecute a person in criminal

matters and nobody can question his decision

- No man is above the law, every man and woman, from the Prime Minister to the tax collectors, is subjected to the ordinary law of the land

For e.g. the foreign diplomats in Malaysia cannot be charged for any crime committed in Malaysia

People's rights are better protected under the Common law than under any document which purport to give rights

For e.g. The Federal Constitution does not allow judges to play their role properly

2. Separation of powers

- Separation of powers simply means that the state is divided into branches, each with separate and independent powers and areas of responsibility. In Malaysia, the branches are the Executive, Parliament and the Judiciary.

Whether separation of powers is followed

Parliament and Executive

- Executive controls the Parliament. Party Whip is used by the Executive to ensure that all MPs do not oppose the Bill that needs to be passed. Parliament and Judiciary

Parliament and Judiciary

-Judiciary makes law through the doctrine of judicial precedent even though they are not supposed to make law. The bad thing about judge-made law is that it is retrospective.

- YDPA appoints the judges, even though he is from the Legislative body

Executive and Judiciary

- AG can determine whether or not to prosecute a person, and this disturbs the role of the judiciary

- In 1988, Dr. Mahathir sacked the chief justice Tun Salleh and two other judges

3. Ministerial responsibility

-As defined by Marshall and Moody, it simply means that ministers are responsible for the general conduct of government

- There are two types; collective responsibility and individual responsibility

- Collective responsibility encompasses 3 principles, i.e. all ministers must speak with one voice; if there is a vote of no-confidence against the government, the whole government must resign; and there must be cabinet secrecy

- In Malaysia, all ministers do speak with one voice, but sometimes they will abuse the concept of collective responsibility to hide from being accountable individually

- The 2^nd principle does not work in Malaysia as the Parliament is dominated by the Executive. This is due to the FPTP system used in Malaysia which encourages the government to have too many seats in Parliament.

- The 3^rd principle works in Malaysia. However, ministers sometimes refuse to discuss certain issues by abusing the term ‘national security’

- There are 3 main aspects of individual responsibility, i.e. personal misconduct, departmental error and policy error

- In Malaysia, ministers usually do not resign over personal misconduct. For example, Dato’ Anwar refuses to resign even though he was alleged to have been involved in sodomy

- For the 2^nd aspect, ministers in Malaysia do not resign. For example, Samy Vellu’s department made an error in the construction of Highland Towers which led to its collapse and death of many

- For policy errors, ministers do not resign at all. For instance, the decision to revert the teaching of Mathematics and Science to English and eventually back to Bahasa Malaysia shows a policy error, but no ministers resigned

4. Upholding human rights

-For constitutionalism to be achieved, human rights must first be upheld. Human rights refer to all kinds of rights including right to live, right to speak, right to a fair trial and etc.

- In Malaysia, human rights are not upheld sometimes.

- For example, under the Internal Security Act 1960, a person can be detained for 2 years without trial, which breaches the right to a fair trial

- Besides that, Article 13 of the Federal Constitution allows persons to have property, but at the same time, it allows the property to be taken away, which violates the right to property.

- The freedom of speech for Malaysians is also restricted by statutes such as the Police Act, Printing Presses and Publications Act and the Internal Security Act. Under those laws, free speech is regulated and controlled

- Art 150 of the FC also violates a lot of human rights. Under this Article, the YDPA can declare Emergency, which removes many rights positively given to citizens. Furthermore, laws made during Emergency cannot be questioned even if it is unconstitutional

5. Independence of the judiciary

-Independence of the judiciary as defined by Lord Browne-Wilkinson means that ‘A Judge should be free from any pressure from the Government or anyone else as to how decide any particular case’

- It basically refers to the ability of a judge to decide cases on their merits, free of any pressure’

-Judges are not independent in Malaysia. The Federal Constitution does not protect the judges. This is clearly shown in the Judiciary Crisis of 1988. In 1988, Tun Dr. Mahathir sacked the chief justice, Tun Salleh Abas and two other judges possibly because the judiciary often struck down his decisions and not because of any valid reason. He even amended Article 121 of the FC to remove the ‘judicial power’ of the courts

6. The need of Parliament to check on the Executive

-The Parliament is the prime law-making body in the country. One of its main functions is to check on the Executive. The Executive represents the people. Therefore, the Parliament must ensure that the Executive is accountable to the people.

-However, it is not effective because the Parliament is dominated by the Executive due to the FPTP system which encourages the ruling party to have too many seats.

-The PM uses the Party Whip to ensure that important Bills will go through.

-There are many motions to restrict the debates; namely; guillotine motion to cut off the debates, kangaroo motion to skip certain parts of the debate and the closure motion to end the debates.

-However, there are other mechanisms to check on the Executive such as the Select Committees, Question Time and Debates

- Select Committees are used to check on the Ministries but it is ineffective as most of the MPs in the Select Committee are members from the ruling party

- Question Time is used in Parliament for the Ministers to answer questions regarding their ministries but it is not effective as the time allocated for it is too short

-Debates are to compel the government to explain its policies and actions. It is totally ineffective as most of the time, the House is nearly empty. There will be very few actually debating.

- The best reform is to improve the electoral system, as the current system gives too many seats to the ruling party, which is the main factor behind the ineffectiveness of Parliament

7. Proper electoral system that ensures proper representation

-The current electoral system used in Malaysia is the First Past The Post (FPTP) system. This system is bad because it gives too much seats to the ruling party, thus, the government becomes too strong

- This system also doesn’t ensure proportional representation. The number of seats which a party obtains in Parliament is not proportional to the actual total number of votes gained

- There are also many wasted votes. The total number of votes cast will not be considered when it comes to the allocation of seats in Parliament. The votes going to the losing candidates are burnt as they have no value at all

- A Proportional System should be adopted. Proportional systems provide proportional representation where every vote is of an equal value.

- Under systems such as Alternative Vote System and Supplementary Vote System, no votes will be wasted as all votes are taken into account for the allocation of seats in Parliament

- However, a Proportional System destroys the link between the MP and the constituents

-Therefore, a Hybrid System is the best solution. A Hybrid system combines a majoritarian system and a proportional system. An example of a Hybrid system is the Additional Member System. This system combines the advantages of the FPTP system and the Party List System.

- There will be more checks on the Executive by the Parliament as the opposition will gain more seats.

Conclusion

- Constitutionalism is a concept that the government must be limited in its powers and accountable to its actions. To achieve constitutionalism, other principles must first be upheld, i.e. the rule of law, separation of powers, ministerial responsibility, upholding of human rights, independence of the judiciary, the need of Parliament to check on Executive and lastly, a proper electoral system that ensures proper representation.

Classifying Constitutions

2011-07-11T03:26:00.000-07:00

Written/Codified and Unwritten/Uncodified

A written constitution is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. It exists in a concrete form as for example, the Constitutions of Malaysia, USA and India. A written constitution is a product of deliberate creation at a particular moment in the nation's history. A written constitution is the supreme and highest law of the land, the law of laws, the grundnorm. It is the law on which all other laws rest. It is the highest rule in the legal pyramid, the apex of the hierarchy of norms. It provides the yardstick for testing the validity of other laws. In most countries, the supremacy of the constitution is upheld by the judiciary by the power of judicial review; the power of the courts to invalidate executive and legislative actions on the ground of unconstitutionality. In case of conflict between the Constitution and an ordinary law, the courts will declare the ordinary law to be null and void as it is 'ultra vires' the constitution (beyond the power). A written constitution is rigid and its principles are entrenched; hard to enact,amend or repeal. It is deemed to be rigid.

An unwritten constitution is not codified in a single set of document or a series of documents, unlike the written constitution. An unwritten constitution is seen as a whole body of fundamental rules derived from many legal and non-legal sources and evolved over many centuries. A good example of a country with an unwritten constitution is the United Kingdom. U.K's constitution is derived from six main sources, three legal and three non-legal sources respectively as follows:

1) Act of Parliament

2) Judge-made law

3)Law of the European Union

4) Conventions

5) Customs

6) Textbook writers opinion

An unwritten constitution is flexible, it is easy to amend( by simple majority). The Parliament and not the Constitution is sovereign.

Main differences between written and unwritten constitutions:

1) A written constitution is said to be rigid, whereas an unwritten constitution is said to be flexible.

2) A written constitution reign supreme. In contrast, Parliament reign supreme under an unwritten constitution.

3) A written constitution has a Bill of Rights ( rights are positively given), an unwritten constitution does not have a Bill of Rights (rights are negatively given/residuary)

4) A written constitution is perceived as clearer and more certain. On the other hand, there is absence of clarity and certainty under unwritten constitution (this perception is debatable)

5) A written constitution attracts greater reverence and public loyalty. This is said not to be the case under unwritten constitution.

6) Under a written constitution, the judiciary can review an Act of Parliament and deem it void if it is unconstitutional. Under an unwritten constitution, the judiciary is not able to question an Act of Parliament.

Rigid and Flexible

A flexible constitution simply refers to a constitution where all laws of the constitution can be amended by a simple or ordinary law-making process. All Acts are equal since there are no entrenched fundamental laws. The Parliament is sovereign; can make,amend or repeal any laws as it wishes. In other words, flexibility means absence of special procedures in enacting,amending or repealing any given law. UK has an unwritten constitution, thus the Parliament can make,amend and repeal any laws by a simple majority. Although the Parliament has unlimited law making power theoretically, in practice however, the Parliament does not do so as it is dependent upon the support of the electorate. The Parliament is also pressured by the EU after the passing of the Human Rights Act 1998, giving positive rights to the citizens.

A rigid constitution refers to a constitution where there are special procedures for enacting, amending or repealing any given law. In other words, the constitution is said to be rigid when there is a special procedure for constitutional amendment, different from and more complex than that required for passing ordinary laws( which require simple majority). Examples of this special procedures for amendment include the two-thirds majority system as in Malaysia or referendums (a direct vote in which an entire electorate is asked to accept or reject a proposal)as in Switzerland. The United States and Malaysia are supposed to have a rigid constitution since it is written. The U.S amended their constitution only 8 times between 1900 and 1990. However, in Malaysia, the constitution is amended around 650 times since Independence. This shows that even though Malaysia has a written constitution, and it is supposed to be rigid with a two-thirds majority system, the huge number of amendments has shown the ease in which the constitution can be amended. This is because the government has secured a two-thirds majority in the Parliament all the while except in 1969 and in 2008. As a conclusion, a country with either a rigid or flexible constitution in theory might actually be in reverse practically. For example, UK has a flexible constitution theoretically, but it is actually rigid in reality.

Republican and Monarchical

Constitutions may be classified according to whether they are Republican or Monarchical. A Republic is a state having as its Head of State a democratically elected President (most of the time), answerable to the electorate and to the constitution. An example of a country practicing Constitutional Republic is the United States. U.S has a President elected by the people and is responsible to enter into treaties, make declarations of war and etc.

In contrast, Malaysia has adopted the Constitutional Monarchy system as has been practiced by the United Kingdom. The United Kingdom has a Queen/King as its Head of State whereas in Malaysia, the YDPA is the Head of State and holds wide official and ceremonial powers. The YDPA is required to act in accordance to the Prime Minister’s advice.

Supreme and Subordinate

A ‘supreme’ constitution is one whose powers are not subjected to any external superior force. Conversely, a subordinate constitution is one whose powers are limited by some higher authority. For example, in Malaysia, the Constitution is supreme where it is the highest law of the land; no other laws can ‘ultra vires’ the constitution. On the other hand, the Parliament is subordinate as it can only enact or amend laws provided that they are in line with the constitution. The constitution in UK is in reverse, where the Parliament has unlimited law-making power and all other legal or non-legal rules are subordinate to it.

Federal and Unitary

A ‘federal constitution’ means that governmental powers are divided between the central organs of state power and the organs of individual ‘states’ or provinces which make up the federation (federalism). The division of powers is already set out in the written constitution and such division shall remain intact as long as the constitution remains supreme. For example, in Malaysia, Article 74 of the Federal Constitution deals with the subject matter. The central government cannot remove the power of certain areas.

A ‘unitary constitution’ means that all state powers are vested by the constitution in central organs. In other words, there is no traditional regional government. The United Kingdom has a unitary constitution where the Westminster government is the central authority for Northern Ireland, Wales and Scotland. However, after the passing of certain Acts, powers are given to the said three regions to fulfil certain functions although the powers may be taken back since it was given voluntarily in the first place. Such process is also known as devolution.

Separated and fused

A constitution may also be classified as having separated or fused powers. Separated powers or separation of powers means that the three main organs of the state; executive, legislative and judiciary should be separated. The objective of separation is to provide checks on the exercise of powers by each organ and to prevent the potential for tyranny. In Malaysia, the constitution provides for functions of each organ separately although there may be parts overlapping.

Fused powers or the fusion of powers means that all of the organs of the state are fused together. Countries with such constitutions are usually totalitarian or monarchical in nature. Under such a constitution, a single figure or body will have the sole power to enact laws, administer the state and to adjudicate upon the law. (judge, jury and executioner)

What is a Constitution?

2011-07-11T03:03:00.000-07:00

Narrow sense :

A single set of a document or documents containing the basic or fundamental rules governing the affairs of the state. In other words, a constitution is understood as a single written document having special legal status, which establishes the state, and sets out the structure and powers of the state.

Broad sense:

A body of legal and non-legal rules concerning the government of a state. In other words, a constitution is understood as where the fundamental or basic rules governing the affairs of the state are not in a single set of document.

In Malaysia:

The constitution is the fundamental and basic law of the land. It is the law on which all other laws are based. Article 4(1) of the Federal Constitution : 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.

Definition by jurists:

Professor KC Wheare : "...the whole system of government of a country, the collection of rules which establish and regulate or govern the government"

Thomas Paine: " A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right...A constitution is a thing antecedent to a government; and a government is only the creature of a constitution"

Barnett: “A living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates”

Generally, a constitution is a set of rules which determine, among others, the manner the institutions are to be set up, the powers to be distributed and the justice to be administered. In other words, a constitution is a broad set of rules and principles by which a state is governed.