Sources of law 7 (5)

SOURCES OF CONSTITUTIONAL LAW

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SOURCES OF THE M’SIAN

CONSTITUTIONAL LAW

1.Federal Constitution

2. State Constitutions

3. Legislation

4. Subsidiary Legislation

5. Judicial Precedent

6. Custom & Conventions

1. THE FEDERAL CONSTITUTION

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It is the supreme law of the land: Articles 4 (1) of Federal Constitution

FC lays down the powers of Federal and State Governments in light of Article 74 & Ninth Schedule

It provides the basic or fundamental rights of an individual. These rights can only be changed by 2/3 majority.

FC is regarded as the most important source of the written law. It applies to all states in the federation.

1. THE FEDERAL CONSTITUTION

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Any general law that is inconsistent with the Constitution is, to the extent of the inconsistency, void.Articles 4 (1) & 162 (6)

Constitutional supremacy is maintained by giving to the superior courts the power & duty to invalidate any legislative or executive act that violates any of the 183 Articles & 13 Schedules of the Constitution.

2. THE STATES CONSTITUTIONS

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Each states in Malaysia has its own individual constitution which provide for a single chamber Legislative Assembly in each state.

This constitution regulates the government of that particular states. e.g. Selangor Constitution.

Article 71 (4) of FC provides that it is mandatory for each state constitution to contain provisions in Part I of the 8th Schedule – regarding Rulers to act on advice, for the existence of an Executive Council (including Menteri Besar), a single chamber & an elected state legislature.

3. LEGISLATION

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It refers to laws enacted by a body constituted for this purpose.

In Malaysia, laws are legislated by the: a. Parliament – at Federal level b. State Legislative Assemblies – at State level

3. LEGISLATION

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Procedure: For enactment of an Act of Parliament is a

simple majority of the members present & voting in both houses of Parliament & the assent of the YDPA : Article 62 (3).

3. LEGISLATION

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Exceptions : (simple majority not applicable) a. Amendment of the Federal Constitution

subject to 2/3 majority & different procedures: Articles 159 & 161E.

b. A law altering the boundaries of the state according to Article 2 (b). Required consent of State & of the Conference of Rulers.

c. YDPA can be bypassed in legislative process under Article 66 (4A).

d. Enactment of legislation by the Dewan Rakyat & YDPA without the consent of the Dewan Negara: Article 68.

3. LEGISLATION

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Exceptions : (simple majority not applicable) e. Power of Parliament to legislate for States in

certain cases including uniformity of laws of 2/more States: Article 76(1). Subject to adoption of the law relating to the relevant matter by the states.

f. Enactment/amendment law directly affecting the privileges & powers of the Rulers must get their consent: Article 38(4)

g. Malay reserve land cannot be de-reserved except by State & approved by a special majority resolution of each House of the Parliament: Article 89 (1).

h. Draft orders relating to delimitation of electoral constituencies require the votes of not less than one-half of the total number of members of the Dewan Rakyat: Schedule 13, Sections 10-11.

3. LEGISLATION Arts 74, 95B & Schs. 9-10

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FEDERAL LISTexternal affairs

defence

internal security

civil law

administration of justice

citizenship

machinery of government

finance & taxation

trade & industry

shipping, Fisheries

energy, Transport

education, Health

labour & professions

social security

aborigines

water supply, rivers & canals

STATE LISTstate government

Islamic law

Malay custom

Islam

local government

land

riverine fisheries

forestry

roads & bridges

public nuisances

agriculture, housing

Malay reservations

water

SABAH /SARAWAK (STATE)

native law, posts, harbours, libraries, immigration

CONCURRENT LISTplanning

soil erosion

scholarship

public health

social welfare

national parks & wildlife

Drainage & irrigation

SABAH/SARAWAK (CONCURRENT)

personal law

some fisheries

some shipping

some energy

elections

4. SUBSIDIARY LEGISLATION

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Also known as subordinate legislation or delegated legislation.

Made by person or bodies under powers conferred on them by Acts of Parliament or State Assemblies. e.g.: Rule, regulations, by laws, order, proclamation & notification.

Subsidiary legislation made in contravention of either parent act or constitution is void.

Persons or bodies will have delegated legislative power conferred by the legislative. e.g.: YDPA, Ministers, Local Authorities.

4. SUBSIDIARY LEGISLATION

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Example: Person/body: Minister of Communications Parent Act : Communications & Multimedia Act

1998 Subsidiary Legislation : Communications &

Multimedia (Licensing) Regulations 1999

5. JUDICIAL PRECEDENT

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Doctrine of Judicial Precedent or Binding Precedent

The doctrine is actually a system which provides for consistency and certainty in decisions.

A judge’s decision in an earlier and similar case constitutes a precedent and it must be followed.


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1. Definition a. Precedent

A judgement or decision of a court of law cited as an authority for the legal principle embodied in its decision

b. Doctrine of Judicial Precedent = Doctrine of Stare Decisis i.e. ‘let the

decision stand’. In making a decision on a case, the judge must follow what has been previously decided by the superior court in similar situations.


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1. Definition b. Doctrine of Judicial Precedent/Doctrine of

Stare Decisis i.e. ‘let the decision stand’. This doctrine works in 2 ways: i. Vertically – a superior court binds all

court subordinate to it & the court has power to overrule principles of law laid down by courts of inferior jurisdiction

ii. Horizontally – a court (usually appellate court) is bound by its own previous decision, the decisions of its predecessor & the decision of courts of coordinate predecessor.


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2. General Rule The general rule regulating the hierarchy of

precedent is based on the principle that decisions of higher courts bind lower courts & some courts are bound by their own decisions.

3. Influential Factor a. Origin of the decision

To be binding, a precedent must originate from a court of appropriate or higher rank in the same hierarchy

b. Content of the decision consists of i. Ratio Decidendi (binding) - the reasoning or legal principle to arrive at such decision.ii. Obiter Dicta (non-binding) – remarks made by judges in passing & elaborating the decision.


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4. Application a. Chang Min Tat FJ PP v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276

In delivering the judgement of the Federal Court, the FJ reaffirmed the doctrine of stare decisis which he said the Federal Crt had accepted unreservedly& which it had expected of High Crt & other inferior courts in a common law system such as Malaysia’s to follow similarly.

b. Lord Gardiner Precedent creates certainty & therefore it is important for the development of law. However, we notice that to be too attached to this doctrine of binding precedents & its results in injustice in certain cases. Therefore in certain cases we may deviate from following the binding precedents.


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5. Non-applicationCircumstances

Judges may ignore or overrule precedent laid down by a lower court, where the case is on appeal.

They may refuse to apply to earlier precedent if it is arrived at per incuriam (made in ignorance of a statute or binding precedent)

They may distinguish the case when they find there are material differences in facts between a case before them & the case laying down a precedent.


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6. Advantages It leads to an element of certainty in the law The law is able to grow as the needs of society

alter The law is flexible in that new rules arise out of

concrete facts or situations. 7. Disadvantages Due to hierarchy of binding precedent being

established, the law becomes rigid to some extent.

The prevent rigidity, the court tend to be keen to distinguish cases based on the facts

The development of law through new precedent may be said to be slow & irregular.

6. CONVENTIONS OF THE CONSTITUTION

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Sources of many binding usages, understanding or practices of Parliament.

Hood Philips defines Conventions as rules of political practice which are regarded as binding by those to whom they apply but which are not laws as they are not enforced by the courts.


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Dicey explains that Conventions are a body not of laws but of constitutional or political ethics, not enforced by the courts.

Prof. Shad defines Conventions as:-forms of political behaviour regarded as obligatory-constitutional morality of the day-non-legal rules of the Constitution


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No constitution can provide everything & is supplemented over time by informal usages, understanding & practices.

The greater the degree of constitutional rigidity, the greater the need for the benefit of informal adaptation that conventions bring.


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Role Sir Ivor Jennings in the Law and the

Constitution, 1971 regarded Conventions as a source of constitutional law.

In the UK, conventions give to the British Constitution some of its most important constitutional principles including the Crown acts on the advice of the Prime Minister, that the PM is from the House of Commons where he is the leader of the majority party, & that the cabinet collectively responsible to Parliament.


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Role Sir Ivor Jennings further explained that

conventions ‘are the flesh which clothe the dry bone of the law’.

Example: in the UK when statutes confer discretionary power on the Monarch, the implicit understanding is that the Monarch shall, in accordance with her conventional duty, act on the advice of Ministers.

Many laws pre-suppose the existence of conventions


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Role Conventions enable informal changes to take

place thereby allowing constitutional growth. A conventions can give rise to laws in the sense

that if the convention is violated with impunity, legislation to convert the convention into a statutory rule is often enacted.

Example: In 1993, royal immunities in Malaysia where some members of royalty ignored their conventional duty to act with dignity & restraint that lead to the amendment of Article 181 to provide a Special Court to try the Sultans for civil & criminal wrongs.


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Role Conventions define the ambit of constitutional

discretion & the manner in which it is to be exercised.

In the UK, the British Monarch has legal power to say ‘no’ to a Bill presented to her for her assent. But the Monarch’s discretion is governed by the convention that she should always give her assent to a Bill which has duly passed both House.

Example: In 1708, Queen Anne was not prepared to agree to the creation of a Scottish Mania.

Conventions help to ensure the existence of constitutionalism & rule of law & contributed to ‘limited government’.


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Conventions in Malaysia Most constitutional conventions of the

Westminster Parliament apply in Malaysia but a number of political practices have evolved which reflect local realities.

Article 40 (1) : “YDPA shall act in accordance with the advise of the Cabinet/ a Minister acting under the general authority of the Cabinet” has come to mean that the PM, to the exclusion of his colleagues, has an exclusive rights of audience with the King despite Article 40 (2)(b).


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Conventions in Malaysia Examples: post of Deputy PM the existence of parliamentary & cabinet

committees the conventional allocation of time to the

opposition during question hour in Parliament

separate categories of ‘Malay’ & the ‘natives of Sabah & Sarawak’ have been merged under the new concept of ‘Bumiputra’ & ‘Bahasa Melayu described as ‘Bahasa Malaysia’.


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Conventions in Malaysia Examples: Cabinet meets once a week every

Wednesday Extra-legal advisory bodies such as the

National Economic Action Council (NEAC) are appointed now & then to perform some of the functions of Ministers.

Cabinet Ministers are chosen in such a way that all the states of the federation are represented in the Cabinet.


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Conventions in Malaysia Examples: Passing of Bills is based partly on the FC

(Articles 66, 68, 38 (4), 159 & 161E) & partly on the internal rules (Standing Orders) & conventions of the Houses. The various ‘readings’ in each House are based on the Standing Order of each House. The Leader of Opposition is given a separate office & staff.


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Establishment No formal machinery. Sir Ivor Jennings lays down 3 criteria for

deciding the existence of conventions: i. Are there precedents to the effect? A

single precedent is generally not enough. ii. Do the actors in the precedent believe

that they were bound by a rule to follow the precedent? A general acceptance of the obligatory nature of practice.

iii. Is there a reason for the rule?


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Modification & Repeal Conventions may lose binding force because of a

major change in constitutional circumstances. Example: the National Government in the UK in

1932 waived the doctrine of collective ministerial responsibility.

In all cases the question as to whether a convention retains its binding force, is demonstrable by the test ‘break it & see’.

Conventions can be modified or destroyed by an Act of Parliament. If a convention has fallen into disuse over a long period of time, or has been violated with impunity, the presumption is that it does not exist.


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Obedience Why? According to Jennings conventions are

obeyed because of the political difficulties which may follow if they are not.

Dicey argues that if a convention is disregarded, there is danger that the breach would bring the violator into conflict with the law of the land.


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Obedience The consequences of a breach of convention

are more commonly political than legal. Breach of convention might lead to changes in

the law or in the whole constitutional structure. Reasons to adherence to conventions: force of

habit, respect & love for tradition, fear of disrepute, sense of obligation, fear of disagreeable political consequences, political self-interest & proven utility of conventions.


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Interrelationship with law The interrelationship between law &

conventions is that both legal & conventional rules govern conduct & control & limit executive discretion.

Conventions are the non-legal rules which regulate the way in which legal rules work.

They supplement the law, make the legal constitution work, keep in touch with the growth of ideas (Jennings).

Courts may adopt a convention in a judicial precedent: Tun Datu Haji Mutapha v Tun Datuk Haji Mohamad Adnan Robert [1986] 2 MLJ 420.


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Distinction between law & convention Law are enforceable judicially. Conventions

are not. Conventions are rules unaccompanied by judicial sanction or relief. No court of law would take notice of their violation.

The only sanctions against violators of conventions are political sanctions: Govt. of Kelantan v Govt. of the Federation of Malaya (1963) MLJ 355.


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Distinction between law & convention Proposition of justiciabilty of law & non-

justiciabilty of convention & several exceptions:

a. Judges Recognition. Often judges recognise the existence of conventions & are influenced by them & use them as aids to interpretation of statutes.

b. Exclusion of Judicial Review. Some legal duties are not enforceable because Parliament has excluded judicial review.


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Distinction between law & convention The proposition of justiciabilty of law & non-

justiciabilty of convention & several exceptions:

c. Judicial Intervention Impossible. Sometimes legal duty which has been created is of such a general nature or so extensive & broadly drawn that courts will find it impossible to intervene to enforce the duty. Example: Article 153 where responsibility of the YDPA to safeguard the special position of the Malays & the natives of Sabah & Sarawak & the legitimate interests of other communities.


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Distinction between law & convention The proposition of justiciabilty of law &

non-justiciabilty of convention & several exceptions:

d. Application of Political Sanction. Rules about the working of the legislature (the law & custom of Parliament) are not enforced by the courts but by each House of Parliament itself. There is no distinction at all between that small number of laws which are not justiciable (& for the enforcement of which only political sanctions may be applied).


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Distinction between law & convention The proposition of justiciabilty of law & non-justiciabilty

of convention & several exceptions: e. Disuse/Violation. Law do not cease to be laws simply

because they fall into disuse/are violated. But a convention can cease to exist if it falls into disuse/ is violated with impunity.

f. Methods of Creation. Laws & conventions are created in different ways. Some well established & formal ways in which rules of law can be created & recognised. But conventions come into being informally.

g. Flexibility. Conventions are much more flexible than laws. They are created informally & can be modified/waived/restored in a like manner. Law are much more rigid & exhibit greater precision & certainty.


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Distinction between law & convention The proposition of justiciabilty of law & non-

justiciabilty of convention & several exceptions: h. Interpretation. The question of breach of law is

generally externally & authoritatively determined. Conventions are generally self-interpreted, often by those to whom they apply.

i. Certainty. The sanctions of law are institutionalised & display some degree of predictability. The consequences of a breach of convention have considerably less certainty.

j. General System. Law is obeyed in that there is a general acceptance of the legal system. Conventions lack any general system & signify only obedience to an individual norm

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Sources of law 7 (5)