Constitutional Dialogue in Common Law Asia -Myassignmenthelp.Com

Question: Discuss About The Constitutional Dialogue In Common Law Asia? Answer: Introduction Every nation has a different kind of legal system. Some of the nations follow a combination of two or a higher number of legal systems, which results in mixed legal system; and there are other nations which adopt only a single kind of legal system. In Malaysia, there is a mixed type of legal system which covers common law, customary law and the Islamic law. The source of the Malaysian legal system comes from the two different laws, i.e., the written law and the unwritten law (Brooker and Wilkinson, 2010). The law of the nation is based majorly on the common law legal system. The reason for this is the colonization between the starting of 19th century to just over middle of the century of Malaya, North Borneo and Sarawak, by Britain (Jackson, 2006). The Constitution of the nation covers the legal rights of the citizens off the nation and also the legal framework. The federal laws in the nation are enacted by the Malaysian Parliament and are applicable across the nation. The state legislative assemblies enact the state law, which apply across the particular states. Through the Malaysian constitution, a unique dual system is presented, which not only provides the sharia laws but also the secular laws, which includes both civil and criminal law (Saha, 2010). This discussion is focused on highlighted these very sources of the Malaysian law, the role played by them, and how they shape the present legal system of the nation. In doing so, the sources of Malaysian law, and the manner in which these are applied in the present day laws of the nation would also be elucidated. This would help in getting a clear understanding on the role and significance of the sources of Malaysian law. Background Before Malaysia got its independence in 1957, the majority of laws of UK had been imported and were made in the local legislation, or were simply applied as being the case laws. The law of the nation also takes inference from other jurisdictions, particularly from India and Australia. The Criminal Procedure Code, which is the criminal law of the nation, is based on the Indian criminal code. Again, the Contracts Act of the nation is based on the model of India. The land law of the nation is inferred from the Australian Torrens system (Noordin and Keng, 2018). As stated earlier, the federal constitution is the supreme law of land (Ahmad, 2018). It gives forth the legal frameworks for the courts, laws, legislations, and the other administrative aspects of law. This very document defines the monarch and the government, along with the powers they have, and also the rights which the citizens get. The laws of the nation have been split in written and unwritten categories. The written laws a re enacted through legislations and constitution; whilst the unwritten laws are such laws which are not covered by any of the statutes, and are found in the decisions of case laws. These are also known as the common law (Hamzah, 2009). Where such happens that a specific situation is not governed through any law, the common law can be applied. In such a situation where even the common law of the nation is not applicable, the English case laws can be applied. At times, the Singaporean, Australian and Indian cases are made use of as being the persuasive authority (Hang and Jacobson, 2017). There is a need to attain clarity on what exactly is the meaning of sources of law, before the Malaysian sources of law are elaborated on. There are different meanings given to the sources of law. The historical sources, which indicate the factors which influence the development of law, but have not been recognized as being the source of law, are also the source of law. For instance, the influence of religious practices, beliefs, opinion of jurists and local customs on development of law are not law per se, but do play role in the formation of law. The same could also refer to the places where law can be found, and the examples of it include the decision of courts, textbooks, statutes and law report. However, in majority of cases, the sources of law refer to the legal sources, which are the legal rules which create the law. And this is the meaning which has to be adopted, till the time otherwise is provided (Sundaram, 2008). Sources of Malaysian Law and its application The sources of law of Malaysia refer to the legal rules which create the laws in the nation, and which can be classified in written and unwritten. This classification though, needs to be treated in a careful manner, as the same was created just for simplicity sake and cannot be deemed as legal classification. Just because it is stated that there is unwritten law, it does not mean the same in literal sense. It simply refers to the part of Malaysian law, which has not been enacted through the legislature, be it by state assemblies or the parliament, and which has not been found in the constitutions, irrespective of it being the state one or the federal one. Such un-enacted law can be found in the case laws which have been decided by the courts and the local customs, which means that the entire non statutory laws. Conversely, the written law makes reference to the law which is embodied in the constitutions of federal and state, and in the statute or the code, which includes the delegate d or the subsidiary legislations (Atikah, 2018). Written Law The written law is the most significant source of law in the nation. It is divided in four different categories, which includes the federal constitution, the state constitution, the legislation and the subsidiary legislation. Federal Constitution The highest legal authority of land in the nation is the Federal Constitution. The constitution had been drafted back in 1956 by the Reid Commission, where there were five representatives from India, Australia, Britain and Pakistan. After the nation got its independence on 31st August, 1957, the constitution came into force. It covered fifteen parts, thirteen schedules and 183 articles (Aun, 1999). Under Article 4(1), it is provided that the constitution is the main or the supreme law of federation, and any such law which had been passed after the Merdeka Day, where such law was not consistent with the constitution, would be void, to the maximum extent off such inconsistency. Under Article 159 and Article 161E, the provision for allowing the constitution to be modified have been provided, and it also provides that for modifying this, there is a need for getting two third majority in both of the houses of Parliament (Yap, 2015). State Constitution There is a similarity between the federal constitution and state constitution, save for the fact that the latter is set by the states in the nation. The federal constitutions 8th schedule provides some provisions which have to be included in state constitutions like the members of state executive, state legislative assembly, finance, role of Yang di Pertua Negeri or Sultan, and etc. Under Article 71, it is provided that all of the state constitutions have to cover their provisions, or eels such provisions would b enforced by the Parliament, or they would abolish any of the provisions covered under the state constitution, where there is a contradiction with such provisions (Mathews, 2014). Legislation The laws which are created by the state legislatives at state level and the parliaments at federal level are the legislations. The federal constitution gives the legislative authority in the nation, where it mentions the scope of the state assembly and the parliament. Where the law is made by state assembly or parliament, which is not within the scope of authority of it, or is contradictory to the constitution, the courts have the power of declaring it as null and void. Article 74 of the federal constitution provides that the parliament can create the laws by making reference to the matters which are given under the federal list, and the state legislatives could make the laws by making reference of such matters which have been provided under the state list (Aldohni, 2011). Through the concurrent list, the scope of enactment by both state legislatives and parliament is provided. These three lists have been provided under schedule 9 of the federal constitution. Where there is any contr adiction in between the state and federal laws, the federal law would prevail and the state law would be void owing to the inconsistency scope (Harding, 2012). Subsidiary Legislation The parliament could pass the power of legislating subsidiary legislation during the time of emergency, and also when there is a contradiction with involvement of federal constitution, owing to the exceptions covered under article 150. Here, reference needs to be made to the case of Eng Keock Cheng v. Public Prosecutor [1966] 1 M.LJ. 18. This case had the plaintiff, i.e., Eng Keock Cheng being convicted for committing two offences when the emergency period was going on and had been ordered to put to death. He made an appeal on grounds that there was neither any preliminary enquiry nor was there a jury adopted by the High Court, which was required based on the Criminal Procedure Act and claimed that the procedures covered in the Emergency (Criminal Trial) Regulations, 1964, had been invalid. This was due to the fact that it was contradictory to Article 8 of the federal constitution. The judges held that the parliament could pass the power of legislating any of the subsidiary legislati on during the time of emergency, even when there was any kind of contradiction with the federal constitution which was involved, owing to certain exceptions covered under its article 150. This ultimately led to the appeal being dismissed (Faruqi, 2005). Unwritten law The unwritten laws are the ones which have not been enacted and which cannot be found in any of the constitution. It covers the English law, i.e., equity and common law, the customs and the judicial decisions. The common law is a key part of states, particularly of commonwealth nations. It consists of non-statutory law, which are the precents taken from the verdicts of cases. The law of equity helps in solving the disputes in between the individuals, by making reference to principles of justness, fairness and equality. Such cases involve nothing being done against the law, just their rights become conflicting. This is thus varied from statutory law, and covers opinions and precents of real cases (Chang et al, 2014). English Law English law is particularly important for the commercial law of the nation (Tham, 2007). Civil Law Act, 1956, under section 3(1)(a) provides that the common law and the law of equity, as was administered in England, has to be applied by the courts in Peninsular Malaysia. Section 3(1)(b) provides that the courts in Sabah and Swark have to apply these laws with the statues of general application as administered by England (AGC, 2006). However, it does not provide that these laws need to remain untouched and follow the same law as is administered in England. There is a need for the law of equity and common law in the nation to be modified and developed based on the local needs. Along with this these laws need to consider the changes made in such laws in England. Though, the government of the nation is free to set their own scope for amending or repealing these two laws in the nation (Mohamad and Trakic, 2015). In the legal matter of Commonwealth of Australia v Midford (Malaysia) Sdn Bhd [1990] 1 MLJ 475, it had been established that the doctrine of crown immunity or sovereign, which had been developed in the English Common law after the year of 1956, had to apply in the nation. It was also provided that any kind of developments in the common law of England after the year of 1956 had to be applicable in the nation (Hamid and Sein, 2006). The landmark case of Smith Kline French Laboratories Ltd. v. Salim (Malaysia) Sdn Bhd [1989] 2 CLJ 228 provided that the courts had the authority of putting aside any law of equity or the common law, which could not be applied in Malaysia (Law Aspect, 2018). Another important case in this matter is that of Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217. In this case, it was held that the courts had the authority of deciding whether there was a need to follow the federal law, or the English law, based on the situation which was present, and the scope of wr itten law permitting to do the same (Mohamed and Halim, 2018). The common law can be applied even in the absence of the local laws. The local law is given regards as is the English law. The English law would only fill up the lacuna where the local legislation was absent. Only the relevant party which suits the requirements of the locals and based on the situation present are applied. Malaysia has different races, and each one has their own customs, which are varied from the English law. Where the entire English law is imported, it would mean that the sovereignty of local race is impacted (Mustafa, 2011). To further elucidate this, reference needs to be made to Syarikat Batu Sinar v UMBC Finance [1990] 2 CLJ 691. This case had the issue of double financing taking place when the endorsement of ownership claim of first purchaser was not covered in the vehicles registration card. The first purchaser attempted to get the possession of vehicle and was sued by the plaintiff. They claimed that the defendant did not have the entitlement to this particular vehicle. The court held that under the English law, there was a need of endorsement of ownership claim in the registration card, but the laws of Peninsular Malaysia did not place any such requirement of the endorsement to be attached with the vehicles registration card. This required the law of endorsement of ownership claims of the nation applying on local situations, to be differentiated from the English law (Crown, 1991). Judicial decisions The judicial decisions have their basis on the doctrine of binding precedent. Precedents refer to the verdict given by the judges in like situations. There are two categories of precedents, i.e., mandatory and persuasive. The persuasive precents on are the ones which are relevant or useful for a specific case. These are not mandatory for the judges to apply. Further, these can be binding on the lower courts, where the judges of the higher courts decide to apply the persuasive precedent (Hamzah, 2009). The mandatory precedents the other hand become applicable where the superior court decision becomes binding on the lower courts or where such higher courts become bound by their previous rulings. Though, the decisions given by the lower courts are not binding on the higher courts. There is a need for the local courts to refer to mandatory precedents of the higher courts. Though, the higher court judges differentiate the cases before them and the cases in precedents, and can chose not to follow such mandatory precedent, where they feel that such mandatory precedents are not related to the cases put before them. This results in an original precedent being created (Hamzah, 2009). Customs Another important source of the unwritten law is the customs. These are inherited on generation basis. Every race has their customs. For instance, Hindu customs are governed by Hindu Customary Law and Chinese customs are governed by Chinese Customary Law. The natives in Sarawak and Sabah, also, have their own customary law, related to family and land matters. There is applicability of Adat on Malays, which has two kinds, i.e., Adat Temenggung and Adat Perpatih. Adat Perpatih applies to Naning and Negeri Sembilan and has its unique features like matrilineal form of organization; whilst Adat Temenggung is applicable in other states with varied features like patrilineal form of organization. Adat Perpatih is basically related to the matters of lineage, land tenure, election of members of YDP and lembaga, and inheritance. This system is based on the lineage of mothers and involves property being inherited in the names to the daughters from the mothers. Adat Temenggung follows the system based on lineage of fathers, and covers the inheritance of property from fathers to sons. With the creation of the Law Reform (Marriage and Divorce) Act 1976, the enforcement on matters of inheritance, marriage and divorce has been given to the family result. Owing to these reasons, the Hindu and Chinese customary laws have lost their effect, as being a key source of the unwritten law in the nation (Law Aspect, 2018). Islamic Law Islamic law only applies on Muslims and has been enacted through the Federal Constitution. The powers and permissions of making Islamic laws related to individuals professing Islam as religion are given to the state legislatures (Aziz, 2009). The Shariah courts administer these laws. This source of law further has two sources. The primary source is Quran, representing the word of allah, and Sunnah, which are the rules deduced from traditions; and the secondary sources are Ijma, which shows the consensus of jurists of any specific time on judicial rule, and Qiyas, which are the deductions from reasoning by analogy (Bhala, 2011). Conclusion From the discussion carried in the previous sections, a conclusion can be drawn that there are different sources of law in the Malaysian legal system. Yet, the common law continues to play a crucial role in the nation and new legislations are enacted based on the changing situations. A majority of new unwritten law have their basis in the legislation of other commonwealth nations. There is also a crucial role played by the judges in the interpretation and in giving the requisite meaning to the written words, which cannot be denied. There are other laws like the Islamic law and the customs law, which contribute as being the source of law in the nation. 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