Constitutional Law Sources PDF

Sources of Constitutional Law: Legal Rules/Sources i.e., the parliamentary debates, motion and question time rests on the Federal Constitution which is the supreme law of the land minister’s shoulders. A minister is required to answer questions, together with constitutions...

Sources of Constitutional Federal Constitution which is the supreme law of the land together with constitutions of the thirteen states comprising the Federation; legislation enacted by Parliament and the State Assemblies under powers conferred on them by their respective constitutions; and subsidiary or delegated legislation made by persons or bodies under powers conferred on them by Acts of Parliament or Enactments of State Assemblies; and judicial precedent/case law. Non-Legal Rules/Sources i.e., conventions & customs, royal prerogatives etc.Note: The UK’s ‘unwritten constitution’ is derived from both the legal and the non-legal sources. In Malaysia, one can find the ‘constitution’ from a single set of a document called the ‘Federal Constitution’ or from the 13 State constitutions which off course must be in line (in terms of provisions) with the Federal Constitution. (See Articles 4 and 75 of the Federal Constitution). Other sources i.e., treaties (are legally binding agreements between two or more states) and conventions (are legally binding agreements between states sponsored by international organisations such as the UN). The PM & Cabinet: The Doctrine of Ministerial Responsibility (Collective & Individual): Meaning of ministerial responsibility- Wade & Bradley defined the doctrine as: “Within a democratic state, those who govern should be accountable, or responsible, to whom they govern”. Marshall and Moody described ministerial responsibility as: “Ministers are responsible for the general conduct of government…” Note: Ministerial responsibility is a doctrine that governs the constitutional relationship between the Cabinet, Parliament and the civil service. The purpose behind the doctrine is based on the notion that the Government (executive) being part of Parliament is answerable, accountable and responsible to it for the way it steers the ship of state. The doctrine of ministerial responsibility is divided into two: collective and individual. In England, this doctrine is not founded on law but on conventions of the constitution. On the other hand, in Malaysia, collective responsibility is explicitly acknowledged in Art 43(3) of the Federal Constitution. But individual responsibility is founded on unwritten conventions and political norms.(a) Individual responsibility- it refers to a number of rules and practices e.g., each minister is responsible to Parliament for the conduct of his or her department, and for actions carried out by the department in pursuit of governmental policies or in discharge of responsibilities laid down upon him/ her as a minister. In other words, ministers are responsible for everything which occurs in their areas of responsibility, including decisions and actions taken by civil servants. The rationale behind the convention of individual ministerial responsibility is to foster the sense of accountability and responsibility of individual ministers to Parliament and the electorate as well. Individual ministerial responsibility is divided into two parts i.e., individual responsibility for policy and administration and individual responsibility for personal conduct. Individual responsibility for policy & administration means that the minister is responsible for every action of his/her department since it is a minister who is the head of the ministry, who speaks in Parliament on behalf of his/her department. He or she is accountable regardless of whether he/she was directly involved in the process. Individual responsibility for a personal conduct means that a minister shall be responsible for his/her personal conduct such as sincerity and honesty. (b) Collective responsibility- Lord Salisbury defined the convention as “It is only on 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…” (See Art 43(2) of the Federal Constitution). It is important to note that Ministers are not immune from suit and the statement in the constitution of collective responsibility may be justiciable. In a Malaysian context, the convention would refer to situations like all ministers must observe the convention of public unanimity. They must speak with one voice; they must present a united front to the public, to Parliament and to the YDPA, etc. The advice to the Monarch should be unanimous. Theory of Individual Ministerial Responsibility: Policy culpability during i.e., there should be a clear line drawn up as to what information’s are detrimental to the security. Press willingness to take up such issues i.e., feeding the public with information surrounding the running of the government by the executive. Personalities of the people involved also matters very much. Ministers should lead by example of the people they represent. Hence, personal conduct of ministers/government becomes an issue of paramount importance. Strength of the opposition in Parliament: this will act as a check and balance on government activities. For instance, increase in the resources of backbenchers and opposition parties, and access to official information. The popularity of the PM and his government- here it is expected that the PM will not be in position to abuse his powers vested in him. The electorate expect to see the PM practising Cabinet Ministerial Government as opposed to Prime Ministerial Government. The state of the economy and the state of public opinion on the matter. The public should take the leading role in seeking for accountable, answerable and responsible government. To assist MPs in their legislative and oversight functions, non-partisan legislative support structures ought to be established. Since much depends on the willingness of backbenchers to act in an independent way, any changes in electoral system, party organisation, or procedures for the selection of candidates which strengthen or diminish the independence of MP will have implications also for the accountability of government. Public Service: Who is a public servant/civil servant? The Federal Constitution does not provide a definition of ‘public servant’ apart from defining the phrase ‘public services’. Public services are defined in Art 132 to be the armed forces, the judicial and legal service, the general public service of the Federation, the police force, the railway service, the joint public services (established by federal law, in common with States, Art 133), state public services, and the education service. Probably reference may be made to Art 160(2) on the definition of “members of the administration”, “office of profit” and “public authority”. General Principles in Constitutional Interpretation: Introduction:Under the existing structure, constitutional interpretation is the function of the court. The judges expound the provisions of the constitution in the course of settling disputes and dispensing justice among the litigants. The interpretive function of the courts requires judges to interpret “static” clauses of the Constitution and statutes in such a way as to give them life and meaning. If the law has ambiguities the judge has to remove them by recourse to a wealth of rules of interpretation. Interpretation is influenced by the judge’s perception of his role at the heart of the legal system. If the law has gaps, as it often does, the judge must fill them by reaching out beyond formal rules to principles, presumptions, doctrines and standards that are part of the majestic network of the law. If the law has conflicts, as it invariably does, the judge has to set out on the task of bringing harmony and consistency where none existed. The judge has to make explicit what is merely implicit in the law. He has to adapt the law of a bygone era to the need of a developing and changing society. His interpretive task has to be creative. In any case the court, under the doctrine of judicial review, is to act as the protector and guardian of constitutional supremacy and by this, it means that the court functions in such a way that all authorities, including the executive and the legislature, operate within the constitutional bounds. It has been said that interpretation of the constitution is a matter of constitutional law and primarily a judicial practice. However, methods of interpretation require justification. But this is quite natural as the court needs to be consistent and predictable in carrying out its role and functions. Meaning of Constitutional Interpretation: Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correct. In other words, constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which meanings are assigned to statute which renders it consistent with the Constitution. The courts can use presumptions as an aid to interpretation. For example, there is a presumption against the retrospective application of statutes, a presumption that Parliament does not intend to contravene international law, or a presumption in favor of common law rights unless they are expressly overridden by statute. The courts use presumptions to protect fundamental principles and rights unless they are clearly overridden by legislation. This approach is often used when interpreting laws that could affect fundamental rights or principles of law. Attitude of Local Courts to Interpretation: In performing the interpretative tasks, the judges may adopt a literal or liberal approach. The following cases show the attitude of local courts to constitutional interpretation: In PP v Datuk Harun bin Haji Idris 2 MLJ 116, it was held that the court is not “at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional theory, or even, …for the purpose of supplying omissions or correcting supposed errors”. In Loh Kooi Choon v Government of Malaysia 2 MLJ 187, 188-189- Raja Azlan Shah FJ had this to say, “Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording’ cannot be overridden by extraneous principles in other Constitutions”. In Merdeka University Berhad v Government of Malaysia 2 MLJ 356- where the court ruled that it is not at liberty to stretch or pervert the language of the Constitution in the interest of any legal or constitutional theory or even for the purposes of supplying omissions or correcting supposed errors. In Government of Kelantan v Government of the Federation of Malaya & Tunku Abdul Rahman Putra al-Haj MLJ 355- where the court asserted that “the Constitution is primarily interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States or Australia”. In Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia 2 MLJ 129, 141- where the Federal Court dismissed what is called “the idealistic approach” taken by their counterparts in India saying that the latter were “indefatigable idealists seeking valiantly to reconcile the irreconcilable”. In Arthur Lee Meng Kuang v AG & Ors 1 MLJ 206, the Supreme Court asserted that “the sensitivity of our court) need not be the same as courts of similar jurisdiction in England and other countries. Having regard to local conditions, criticisms which are considered as within limit of reasonable courtesy elsewhere are not necessarily here. In Dato Menteri Othman Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus 1 MLJ 29- where the court laid down two principles, namely (i) that judicial precedent plays lesser part than it is in ordinary statutory interpretation (ii) that constitutional provisions being a living piece of legislation must be construed broadly and not in pedantic manner; with less rigidity and more generosity than other ordinary acts of parliament. In Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia & Anor 2 MLJ 241- where the court ruled that despite the amendment to Art 121 of the Federal Constitution which essentially sought to protect the jurisdiction of the syariah court- it was constitutional for the civil court to try offences that fall under the jurisdiction of the syariah court. In this case, the court held that the provision “should not be construed literally because a literal interpretation would give rise to consequences which the legislature could not possibly have intended and that “We would… prefer… to … choose a construction which will be consistent with the smooth working of the system… and reject an interpretation that will lead to uncertainty and confusion…” In Che Omar, bin Che Soh 2 MLJ 22, 56E-F, where the court relied on the intention of the framers. In Che Omar Che Soh, the Supreme Court actually referred to the history of Islam in the country after the British intervention in the Malay states and called it “the meaning intended by the framers” in relation to the meaning of the term “religion of the Federation” in the Federal Constitution. See also were held by the same person, then there would be a dictatorship and arbitrary rule would prevail. Note: If this doctrine is strictly followed, it means that no one of the three branches of government can participate in any functions of the others or belong to the others. The Meaning of Separation of Powers: Strict sense- There should be, ideally, a clear demarcation of functions between the legislature, the executive and the judiciary in order non- should have excessive power and there should be in place a system of checks and balances between the institutions. (See the approach taken by Montesquieu above). 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. (See how the doctrine operates in the UK or under Westminster system). Note: Is it possible to have strict/pure separation of powers? Why have the Separation of Powers? The answer to this question could be given in different expressions: To avoid absolutism in power by preventing monopoly of powers and functions within the three organs of the state. To reduce the potential for the abuse of governmental power by avoiding its concentration in a single person or institution. To avoid concentration of power in the hands of the executive. Take note also of the famous statement of Lord Acton while addressing the rationale behind the doctrine. He claimed: “…absolute power corrupts absolutely…” Thus, there must be checks and balances in place to prevent the abuse of power. Note: The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens. How is the Separation of Powers Practised in Malaysia? The system/doctrine as practised in Malaysia is closer to the British rather than the American model. Why? There is no separation of executive-legislative power because of the Cabinet type of organisation. This fusion of legislative and executive functions is inherent in the Westminster system. (See the position of the YDPA under and also the Cabinet members under the Malaysian system) Under the American system, the President (head of the executive) is neither chosen by nor responsible to Congress, the legislative branch. In other words, the President is elected, and he/she is not a Member of Congress. Still on the American system, Cabinet members are appointed by the President, and they are responsible to him. They are not required to be Members of Congress and in fact must resign their seats when appointed to the executive. How is the Separation of Powers Practised in Malaysia? (Continuation) In Malaysia, the YDPA who is the ceremonial executive is an integral part of the Parliament. The Cabinet appointed by the YDPA and in whose hands the real authority rests, consists of ministers who are required by the Constitution to be members of either House of Parliament. It is collectively responsible to Parliament. In this arrangement, the executive arm of government is an integral part of the legislature. Although the system as practised in Malaysia is closer to the British rather than the American model, it is important to note that the Federal Constitution clearly states the functions of the three organs of government. (See Art 44 which vests the legislative power of the Federation in Parliament; Art 39 deals with executive authority of the Federation; and Art 121deals with the judicial power of the Federation). The Three Organs of the Government: Legislative organ-It comprises of the YDPA, the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives). Some of the members of the Dewan Negara may be elected or appointed as well (see Art 45 of the Federal Constitution). Members of the Dewan Rakyat are all elected (see Art 46 of the Federal Constitution). Executive organ-It comprises of the YDPA and the government, including the PM and Cabinet Ministers. Judicial organ-It includes all the judges in the court of law ranging from the subordinate courts to the superior courts. Functions & Powers of the Three Organs of Government: Legislative organ- The main function of the legislature is to make law. Apart from that the legislative organ also scrutinises public expenditure and prescribes the minimum qualification. A nominee to the superior courts must have at least 10 years experience at the Bar or as a member of the judicial and legal service. See also Art 122B which requires an extensive process of consultation. On the other hand, the answer is yes because the safeguards are not adequate enough. The AG who is part of the executive organ is viewed as performing a judicial function and the PM is behind his/her appointment (see Art 145(1)(2)(3) of the Federal Constitution). Would that lead to a conflict of interest as well? See also Art 145(3A) which at times do arose discomfort on the part of the masses or people. Judges of the Sessions and magistrates’ courts are members of the judicial and legal service. They are transferable from the Bench to the Attorney-General’s Chambers and the government departments. Their institutional link with the executive and the influence of the executive on their transferability and career paths subject them to problems and pressures that should have been avoided Chairpersons of hundreds of administrative tribunals are not full-time judges. Often they are administrators or politicians with no legal qualification. Their links with the executive may create the appearance of institutional bias. Checks and Balances Available: Legislature & Executive. The YDPA does not play an active role in both organs other than viewed as a ‘symbol of unity’. For example, as part of the executive, the YDPA acts on advice of the Cabinet or of a Minister (see Art 40(1) & (1A) of the Federal Constitution). The YDPA being part of the legislature is guided by the Constitution (see Art 66(4) dealing with the requirement of a ‘Royal Assent’ to a Bill i.e. the YDPA shall within 30 days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto). Parliament (House of Representative/Dewan Rakyat) may oust a government through a vote of no confidence. (See Art 43(4) which provides that if defeated on a vote of no confidence or on a “matter of confidence”, the PM shall tender the resignation of his Cabinet. Parliament/legislature exercises political control over the working of the executive through parliamentary procedures such as: question time, debates and select committees. Checks and Balances Available: (Continuation) (b) Legislature & Judiciary: No member of Parliament can hold judicial office and vice versa. This is to maintain the independence of the judiciary i.e. members of the judiciary should not engage themselves in politics. The judiciary can declare an Act of Parliament as unconstitutional (see Art 4(1) on the supremacy of the Constitution). The judges are expected to perform their duty according to the obligations of the Constitution and their understanding of the law. Conduct of judges may not be the subject of discussion in the State Assembly and although it may be discussed in the Parliament, it can only be done 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 (see Art 127 of the Federal Constitution). The judiciary is able to control ‘subsidiary legislation’. This is by virtue of sections 23(1) and 87(d) of the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment shall be void to the extent of the inconsistency. (c)Executive & Judiciary: No member of the executive can hold judicial office and vice versa. This is to protect the independence of the judiciary i.e. from having conflict of interest, etc. Judges do not hold their office at the pleasure of the YDPA or the executive. They can be removed from office but only on misbehaviour or inability to properly discharge the functions of their office (see Art 125(3) of the Federal Constitution). Although the executive arm plays a vital role in the appointment of judges of the superior courts, there are safeguards. For example, Art 123 prescribes the minimum qualification. A nominee to the superior courts must have at least 10 years at the Bar or as a member of the judicial and legal service. (See also Art 122B, which requires an extensive process of consultation). The Federal Constitution contains express provisions to secure independence of the judiciary, either from the control or chairpersons of hundreds of administrative tribunals with the executive organ should be looked into. Probably, we need to think of appointing full-time judges to do the job. Reviewing the current electoral system used in electing members of the Dewan Rakyat might play an important role in viewing Parliament not like another executive arm/the government. Need to address some other rules of the Constitution i.e. Art 145(3A) which gives power to the AG to choose the venue at which judicial proceedings will commence or be transferred to. BRUNEI POSITION: There is no separation of powers in Brunei. The executive and legislative powers rest with the Sultan, while the Cabinet of Ministers and the Legislative Council have subordinate roles. When the Legislative Council was reinstated in 2004, the newly added Article 84(2) of the Constitution made the limitations of this Council clear, stating that “nothing in this Constitution shall be deemed to derogate from the prerogative powers and jurisdiction of [...the Sultan who...] retains the power to make laws and to proclaim a further Part or Parts of the law of this Constitution as [...the Sultan...] may seem expedient.”. The absolute power of the Sultan is further cemented by the State of Emergency declared more than five decades ago. The emergency powers in Article 83(3) of the Constitution (and Section 3(1) of the Emergency Regulations Act, Cap 21, 1984) grant the Sultan absolute discretion to issue Orders as long as the Sultan himself considers such Orders to be “desirable in the public interest” and thus there are no external limits to these powers according to the Constitution. The decisions, acts, etc. of the Sultan are final with no judicial review available for them, Article 84C of the Constitution makes this explicitly clear. Moreover, the newly introduced Syariah Penal Code Order 2013 under Section 230 exposes a person who “contempts, neglects, contravenes, opposes or insults” the Sultan and Yang Di-Pertuan to a prison term of up to five years. This provision is applicable to Muslims and non-Muslims alike. Conclusion: Despite the overlaps in membership, functions and powers as discussed above, Malaysian Constitution secures this dimension quite well. There is separation of powers between the judiciary, on the one side and the executive and the legislature on the other. For example, the Constitution clearly states the functions of these three organs. However, Brunei being a monarchical system has its own system based on its constitution, which does not necessarily capture the concept of separation of powers as perceived by democratic systems. Rule Of Law: The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same law, including lawmakers and leaders. The rule of law is defined as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power." The principle of the be traced back to the writings of philosophers in ancient Rome and Greece. For example, the maxim, ‘the rule of law is preferable to that of any individual’, has been attributed to Greek philosopher Aristotle. He argued that government by laws was superior to government by men. The idea of the ‘rule of law’ was not invented by Dicey, but popularised it in the late 19th century. (See his book titled ‘Introduction to Study of the Law of Constitution’ (1885)- where he claimed that the rule of law meant three things under the British Constitution i.e., no punishment may be inflicted other than for the breach of the law; irrespective of rank and status all are equal before the law; and rights and freedoms are best protected under Common Law rather than a formal Bill of Rights. 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. The ‘rule of law’ implies the supremacy of law and that all laws must conform to certain minimum standards for instance protection of civil liberties. Thus, the ‘rule of law’ requires laws to respect certain basic inalienable rights. The doctrine means something more than ‘government according to the terms of the constitution’. In a Malaysian context, the supremacy of law and that all laws must conform to certain minimum standards for instance protection of civil liberties. Thus, the ‘rule of law’ requires laws to respect certain basic inalienable rights. The Judiciary: Meaning of Independence of the Judiciary: The words “independence of the judiciary” do not appear anywhere in the Federal Constitution. However, a British judge, Sir Brown-Wilkinson viewed the concept as “A judge should be free of any pressure from the government or anyone else as to how to decide any particular case”. Hence, independence of the judiciary basically refers to the ability of a judge to decide cases on their merits, free from any pressure. The Notion of Judicial Independence: This has three dimensions and they are: (a) There should be structural and institutional separation. Our Constitution secures this dimension quite well. For example, superior courts are structurally separate from and independent of the executive and legislature. There is separation of powers between the judiciary on the one side and the executive and the legislature on the other. (See Articles 39, 44 & 121 of the Federal Constitution) (b) There should be functional independence. This dimension of judicial independence requires that judges, whether of the superior or inferior courts, must be bound only by the law and by their conscience. They must not take dictation from anyone and must have the power and ability to act without fear or favour. On this core, the situation in the country is satisfactory. Despite their links with the judicial and legal service, judges of the inferior courts do not receive directions from any one. Hundreds of cases exist in which judges have reviewed the legality of administrative actions & dismissed actions started by the public prosecutor. (c)There should be freedom from bias. This can never be guaranteed by the law. It is a matter of character, integrity, maturity and erudition. Judges must have open minds. They must set aside the prides, prejudices, presumptions that all human invariably grow up with. The reality, however, is that most judges are like the rest of us. They are not free of political, economic or moral assumptions. Their decisions reflect patterns and policy biases. Inarticulate or unspoken assumptions often guide their thinking. Thus, the judge must not only be independent of executive influence; but must also be free of ideological and policy preferences and have the willingness to act with an open mind. Why is Judicial Independence Important? Brown-Wilkinson says that the courts are there to protect individual rights against the state by ensuring the executive powers are lawfully exercised. This is of course said within the British and European context. But it is not wrong. Indeed it is one of the roles of the courts in a democracy. Former Lord President Mohamed Suffian Hashim said in this connection, that 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 conscience. Securing Judicial Independence Under the Federal Constitution: The Federal Constitution contains express provisions to independence, either from the control or interference by the executive or the legislature. The following are the safeguards: (a) Method of appointment: In Malaysia, as in most legal systems, appointments are in the hands of the Executive. But to ensure that only persons of integrity and calibre are elevated to the Bench, there are two safeguards. First, Art 123 prescribes the minimum qualification. A nominee to the superior courts must have at least 10 years’ experience at the Bar or as a member of the judicial and legal service. Second, Article 122B requires an extensive process of consultation. (b) Security of tenure: Unlike civil servants, superior court judges have permanency in their tenure. They cannot be removed from office by Parliament as in the US and UK. Under Art 125(3), the YDPA can dismiss a judge only after a judicial tribunal of not less than five local or Commonwealth judges has recommended removal on the grounds of the breach of the code of ethics, inability from infirmity of body or mind, or any other cause to discharge the judges is a matter between the YDPA and the PM personally. The initiative for the appointment of the tribunal (under Art 125(3)) to dismiss a judge can come from the PM (as in the case of the tribunal to try Tun Salleh Abas in 1988) or from the Chief Justice (as in the case of the tribunal to try five Supreme Court (now Federal Court) justices in 1988). Pending the report of the tribunal, a judge can be suspended from office. The constitutional safeguards against unfair dismissal of judges has its own weaknesses. For example, Art 125(4) is silent about the seniority of tribunal members in view of the judge to be tried. This is in contrast with the general rule that members of a disciplinary board should not be inferior or in rank to the officer to be tried. Furthermore, the gilt-edged provision of Art 125 that judges must be tried by their peers results in the ironic situation that justices who would benefit from the removal of the accused are allowed to sit in the judgment over him. This is a violation of the rule of natural justice that a person should not be a judge in his own cause. In the matter of promotion, seniority is not always taken note of unlike in countries like Pakistan where disregard of seniority is seen as executive interference with judicial independence. Promotions are in the hands of the King/YDPA who acts on the PM’s advice. The PM in turn consults the Chief Justice, the president of the Court of Appeal and the chief judges of the High Courts. Much as judges abhor partisanship, some judicial functions gallop around the outskirts of economic and political ideology. For example, the judicial power in Articles 4(1) and 128(1) to determine the constitutionality of laws and executive actions requires judges to adjudicate on issues on which political passions may run high. Also, judicial determination of disputes between the federal government and the states and between states often drags the courts into politically-charged issues. Witness, for example, the decision in Mamat bin Daud & Ors v. Government of Malaysia (1988) that Sec 298A of the Penal Code was not a law on public order (within the powers of the federal government) but a law on Islam (within the exclusive competence of the states). Some other rules of the Constitution, for example Art 145(3A) which gives power to the AG to choose the venue at which judicial proceedings will commence or be transferred to, arose some discomfort while faced with the notion of independence of the judiciary. Constitutional role of the judiciary severely restricted by the enactment of Constitutional (Amendment) Act, 1988 (see art 121 of the Federal Constitution). Judicial power is no longer “vested” in the courts and their jurisdictions and powers are defined by laws enacted by Parliament. By law, judges of the subordinate courts are part of the Judicial and Legal Service of the Federation and are transferrable from the Bench to the Attorney-General’s office. Availability of latent threats. This latent threat exists as finance and other resources necessary for the judiciary to carry out its functions effectively are basically under the control of the executive. Also, the award of titles such as Tunship, Tan Sriship and the executive being in position to distribute business opportunities etc something that is normally sought after retirement hinders the notion of independence of the judiciary. Attorney General: Article 145(1) provides that the AG is to be appointed by the YDPA, on the advice of the PM. He must be a person who is qualified to be a judge of the Federal Court under Art 123. He holds his office ‘during the pleasure of the YDPA which means that he has no security of tenure unlike the superior court judges or the Auditor General (see Articles 125 and 105). See also the case of Government of Malaysia v Lionel 1 MLJ 3. Article 145(5) provides the possibility for the AG to be appointed from a member of cabinet. It seems the Reid Commission favoured a non-political or a career AG. However, the Commission left the possibility of appointing a political AG under Article 143. Brunei Position Attorney General and his functions. 81. (1) There shall be an Attorney General who shall be appointed by His Majesty the Sultan and Yang Di-Pertuan by notification published in the Gazette. (2) The Attorney General shall advise on all legal matters connected with the affairs of Brunei Darussalam referred to him by His Conference of Rulers; (3) The amending clause (2) of Art 161E which is of special interest to East Malaysia, and which requires a two-thirds majority in both Houses of Parliament and the consent of the Governor of the East Malaysian State in question; and (4) The amending clause (3) of Art 159 which requires a majority of two-thirds in both Houses of Parliament.” Note: There is yet another way of amending the Constitution; namely through Art 150 which gives the executive power to declare emergency. Thus, effectively, there are actually five different ways of amending the Constitution although the one under Art 150 is outside Arts 159 and 161E, the two provisions which specifically deal with amending procedures. (a) Amendments that require a simple majority: Comparatively unimportant constitutional amendments that require only a simple majority, are enumerated in clause (4) of Art 159. The Senate can only delay these amendments: it cannot veto them (see Art 68(5)). (b) Amendments that simply require a two-thirds majority in each House of Parliament, irrespective of the consent of the Conference of Rulers and the concurrence of the Governors of East Malaysia: Amendments here require only the approval of two-thirds majority in each House of Parliament, and do not require for their validity the consent of the Conference of Rulers nor the concurrence of any of the East Malaysian Governor. These amendments constitute by far the largest category. See Art 159(3) of the Federal Constitution. (c) Amendments that require a two-thirds majority in each House of Parliament and the consent of the Conference of Rulers: These amendments require the consent of the most noble assembly in the country because they are considered the most important. They are listed in clause (5) of Art 159. (d) Amendments that require a two-thirds majority in each House of Parliament and the concurrence of the Governor of the Borneo state or each of the Borneo state concerned: These amendments are of special interest to East Malaysia and enumerated in clause (2) of Art 161E require not only the approval of a two-thirds majority in each House of Parliament but also the concurrence of the Governors in East Malaysia or the Governor of the state concerned. The Basic Structure Doctrine: The “basic structure doctrine” basically refers to an implied limitation on the power of Parliament in amending the Constitution i.e., to make it a totally different document. This doctrine originated from a series of Indian decisions/cases of Golanath v State of Punjab 2 SCR 762 and Kesavananda v The State of Kerala SCR Supp 1. Generally, this doctrine means that: “any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble [of the Indian Constitution] and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that while fundamental rights cannot be abrogated reasonable abridgments of fundamental rights can be effected in the public interest… The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remain the same”. This issue of the “basic structure doctrine” is crucial for various reasons. One of them is the position and prominence occupied by the constitutional document; the doctrine of basic structure obviously protects the very pillars of the Constitution and to amend or take them away is tantamount to destroying the Constitution itself. Despite its importance, the Constitution itself is silent on the point: it does not specify (and neither did the Reid Commission Report) which of the provisions are to be considered as the essentials. The basic structure of the Indian Constitution consists: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) separation of powers between the legislature, executive and the judiciary; and (5) Federal character of the Constitution. In contrast to Raja Azlan Shah (as he then was), Wan Suleiman FJ did not feel that for the purpose of the case (Loh Kooi Choon)- he need to make decisions on whether such an implied is applicable in Malaysia. It was suggested by the counsel in Phang Chin Hock v PP 1 200 years. Article 7 of The Federal Constitution- Protection against retrospective criminal laws and repeated trials: (a) Art 7(1) provides that no person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed. Art 7(1) creates two safeguards against backdated criminal legislation. First, a law creating a new penal offence cannot have effect back in time. Second, if the penalty for a criminal offence is enhanced, the law increasing the penalty cannot be applied retrospectively. In other words, Parliament cannot create a new offence and give it a retrospective effect and also that the increase for the punishment for a penalty cannot be done retrospectively. With this provision, Parliament is prevented from giving both the creation and increase in punishment retrospective effect: laws must be prospective in their operation. Thus, in legal jargon, ex post facto criminal laws are forbidden by the Constitution. In criminal proceedings the law applicable to the charge must be the law existing at the time of the commission or omission of the act and not the law applicable at the time of the trial or verdict. Still on Art 7(1), reference can be made to the case of PP v Mohamed Ismail 2 MLJ 219- where the defendant was charged with drug trafficking which was punishable with life imprisonment or death under section 39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended to provide for a mandatory death penalty. At the close of the trial the PP invited the court to impose the enhanced penalty. In refusing the request, the judge held that the amendment could not apply to the defendant’s case as it was enacted after the offence had been committed. Application of the new law to the case would violate Art 7(1). It is important to note that permissible exceptions exist under Art 7(1) e.g., prohibition against retrospectivity applies only to laws that create new criminal offences or enhance penalties for existing crimes. Thus, a number of situations are not caught by the constitutional ban. Some of the permissible exceptions are: (i) The word ‘punishment’ in Art 7(1) has been interpreted in Lok Kooi Choon v Government of Malaysia 2 MLJ 187 to refer to criminal sanctions and not to civil penalties. Laws dealing with non-criminal matters such as maintenance or tax liability can be backdated. Still on the permissible exceptions under Art 7(1), it is also important to point out that (ii) Art 7(1) forbids retrospective alteration of substantive criminal laws i.e. laws that provide for offences and penalties. But penal laws of a purely procedural nature can be backdated. In Lim Sing Hiaw v PP 1 MLJ 85- the court upheld a retrospective amendment to criminal procedure that converted a trial by jury to trial by judge alone. In Gerald Fernandez v AG 1 MLJ 262- extradition procedures were amended retrospectively to facilitate the return of a fugitive to Singapore for an offence committed in the Republic prior to the amendment. In Haw Tua Tau v PP 1 MLJ 2- rules of criminal procedure were amended after the commission of the alleged crime but before commencement of the trial. The court held that the protection of Art 7(1) is against conviction and sentence only and not against the procedure for trial. In addition to the above, in PP v Musa 1 MLJ 101- it was held that reducing the scope of judicial review of a preventive detention order by retrospective legislation does not violate Art 7(1). Also criminal laws decreasing the penalty for an offence or abolishing an offence can be backdated. An accused can take advantage of the beneficial provisions of ex post facto laws. Furthermore, like most provisions on fundamental rights, Art 7(1) can be suspended or departed from by emergency legislation. (b) ) Art 7(2) provides that a person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and retrial ordered by a court superior to that by which he was acquitted or convicted. Art 7(2) is essentially the incorporation of common law pleas of autrefois acquit (the accused has already been acquitted of the offence) and autrefois convict (the accused has already been convicted of the 7(2). Thus, if a person has been acquitted or convicted in a criminal court, is subsequently subjected to disciplinary proceedings upon the same facts, there is no double jeopardy. In Mohamed Yusof Samadi v AG 1 MLJ 1- a school teacher was acquitted of outraging his pupils but subsequently tried, convicted and dismissed for bringing disrepute to his profession. Other exceptions under Art 7(2) are: multiplicity proceedings (trial in one court on charges also pending in another court does not amount to double jeopardy), civil proceedings (imposition of a criminal penalty is no bar action) and re-trial (appellate criminal courts have a new trial. Law: Legal Rules/Sources i.e., the parliamentary debates, motion and question time rests on the minister’s shoulders. A minister is required to answer questions, supply information and justify his department’s policies. He must accept responsibility for all policy and administrative errors in his department even if he himself was not involved in the administrative bungling that is the subject of parliamentary scrutiny. A minister is vicariously responsible to Parliament for the acts of his civil servants. This convention preserves the anonymity of civil servants and shields them from political attack on the floor of the Houses of Parliament. A minister is politically responsible for the formal acts of the monarch in which the minister participated.A minister must open debate on departmental legislation. A minister must resign if a vote of censure is passed against him. Such votes are, however, rare. The Practice of Individual Ministerial Responsibility:The parliamentary procedures are not all that effective. Critics of Parliament allege that question-time is nothing but a ritual exercise in evasion. On any particular day, two-thirds of the oral questions slated for reply are not due to shortage of time. Also, answers are often refused on security or other grounds. Secrecy in government is so widespread that Parliament is unable to extract much information from the Government. In any case, parliamentary time is inadequate to scrutinise the government thoroughly. In practical terms nowadays, several factors diminish the extent to which a minister can assume responsibility for every action of the department. The size of the departments, the usually short ministerial tenure of office in any one department and the complexity of modern government. The Government usually rallies behind a minister who is being criticised in Parliament. In other words, a minister will not resign if he/she still has the support of the PM and the party. Resignation of a minister is also not viewed as punitive enough. Why? The erring minister who resign is appointed to another posts; the unearthing of incompetence and inefficiency is such a slow process that the minister responsible has long ceased to hold the position in question and thus renders resignation unnecessary, etc. The meaning of political responsibility cannot be defined i.e., should a minister only resign regarding policy matters or administrative matters as well? Theory of Collective Ministerial Responsibility:It emphasises on the unanimity of government and its accountability to Parliament. Ministers must speak with one voice; they must present a united front to the public, to Parliament and to the YDPA. The advice to the monarch should be unanimous. This duty applies even if the minister did not take part in or concur with the decision. The Government must maintain the confidence of the Lower House (Dewan Rakyat) as a condition of its survival. (See Art 43(4) of the Federal Constitution) Both under law and conventions, ministers have a duty to observe secrecy in relation to all Cabinet deliberations. In other words, Cabinet papers, discussions, documents, proceedings of Cabinet committees and communication between departments are treated confidential. The PM and his Cabinet must belong to Parliament in order to ensure answerability to Parliament. (See Art 43(2)) The Cabinet owes a political responsibility to the YDPA for the general conduct of government. (See Art 40(1) stating that the monarch has the right to all information about the government). The Practice of Collective Ministerial Responsibility: The Government may end up not resigning but instead put the issue before the House for second time. But take note of three resignations at state since Merdeka i.e., Stephen Kalong Ningkan in Sarawak in 1966; Datuk Harun Idris in Selangor in 1976; and Datuk Mohammad Nasir in Kelantan in 1977. In practice, a minister may breach the convention of speaking with one voice by secretly briefing the media on his disquiet with government policy. Abuse of confidentiality of Cabinet meetings, discussions, documents, proceedings of cabinet committees , etc. Secrecy is so widespread that Parliament is unable to extract information from the government. Recommendations to ensure the effectiveness of individual and collective responsibility:Increase on the investigatory powers of Parliament words in a constitution, to enable legal decisions to be made that are justified by it. Interpretation is basically about ascertaining the meaning of the constitutional provision, and the activity has been divided into two broad categories; namely (i) interpretation and (ii) construction. Interpretation has been defined as “discovering the meaning of constitutional text”. On the other hand, construction has been defined as a creative discovery of the hidden meaning of the text within the founding document. While interpretation is said to be legalistic and thus recognizable, construction on the other hand has been described as political, and as such hardly capable of being captured in pure legal forms. Approaches in Constitutional Interpretation: There are three main approaches/principles adopted in Commonwealth jurisdictions, and they are: (a) Literal approach: The “strict constructionists” believe that the Constitution should be interpreted in accordance with the original intention of its framers. The “plain language” of the provision and its grammatical and ordinary sense should be given effect. Deference should be paid to the enactment’s history. This approach is also called the “intentionalist” approach. This approach tries to find out what the framers of the Constitution had in mind when they first framed the Constitution. Originalists think that the best way to interpret the Constitution is to determine how the framers intended the Constitution to be interpreted. Originalists consider the original intent to be the purest way of interpreting the Constitution; the opinions of the Framers were, for the most part, well documented. If there is an unclear turn of phrase in the Constitution, who better to explain it than those who wrote it? Literal approach: Under this approach, the argument is that the Constitution must be interpreted within its own four walls. Thus, although the Bruneian or Malaysian Constitution may bear a family resemblance to other Constitutions of similar background, its provisions must be considered in the light of the entire Constitution and prevailing conditions in Brunei or Malaysia. It follows that although authorities from other jurisdictions, such as India, England, Australia, or the United States, may interpret similar or identical provisions and offer some guidance, they cannot be regarded as anything more than persuasive. In general, English authorities have been found to be more persuasive than Indian authorities, even though the Malaysian Constitution is nearer in content and structure to the Indian Constitution than the British. (b) Liberal approach: The “activists” or “legal realists” argue that the interpretive task is unavoidably created because legal words do not have a self-evident meaning. Expressions such as ‘personal liberty’, ‘life’, ‘law’, ‘property’, ‘adequate compensation’, ‘religion’ and ‘emergency’ are not nicely cut up and dried. It is for judges to give life and meaning to the cold letters of the law. Under this approach, the idea is that the Constitution must be interpreted broadly. It is not a statute, where a narrow interpretation may be justified: it must be assumed that the constitutional makers intended their words to be of broad application. This approach is also called the “modernist approach” which looks at the Constitution as if it were ratified today. What meaning would it have today, if written today. How does modern life affect the words of the Constitution? Modernists also contend that the Constitution is deliberately vague in many areas, expressly to permit modern interpretations to override older ones as the Constitution ages. Liberal approach: A pragmatic rather than dogmatic approach to the interpretation of the basic charter’s provisions should be adopted. Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing needs. In the words of Woodrow Wilson, the Constitution “is not a mere lawyers’ document: it is a vehicle of life, and its spirit is always the spirit of the age”. Judges have a duty to determine, independently of any historical limitations, the contemporary, core, constitutional values that deserve protection. (c) Presumption approach: There is a strong presumption that a statute is constitutionally valid, the burden of proof lies with the party seeking to establish that it is not, and the court will lean in favour of an interpretation of a Teoh Eng Huat v Kadhi, Pasir Mas & Anor 2 MLJ 300 & Meor Atiqulrahman 1 AMR 366, 385. In PP v Datuk Harun bin Haji Idris 2 MLJ 116, 120- where it held that the Constitution is not to be construed in any narrow or pedantic sense (James v Commonwealth of Australia AC 578, 614) but this does not mean that a court is at liberty to stretch or even or pervert the language of the Constitution in the interests of any legal or constitutional theory, or even, I would add, for the purpose of supplying omissions or of correcting supposed errors. In Arthur Lee Meng Kuang v AG & Ors 1 MLJ 206, the Supreme Court asserted that “the sensitivity of our court) need not be the same as courts of similar jurisdiction in England and other countries. Having regard to local conditions, criticisms which are considered as within limit of reasonable courtesy elsewhere are not necessarily here. In Dato Menteri Othman Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus 1 MLJ 29- where Raja Azlan Shah FJ reiterated that “In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way- ‘with less rigidity and more generosity than other Acts (Minister of Home Affairs v Fisher AC 319). The principle of interpreting constitutions ‘with less rigidity and more generosity’ was again applied in the Privy Council in AG of St Christopher, Nevis and Anguilla v Reynolds AC 637. In Adong bin Kuwau & Ors v Kerajan Negeri Johor & Anor 1 MLJ 418- where the High Court was willing to consider and follow the decisions from Nigeria, British Columbia, the United States, Australia and New Zealand on the natives’ proprietary rights. Conclusion: One of the prime tasks of a court in any democracy is to interpret the written words of the constitutional document. To understand how courts have reached their decisions on constitutional issues, it is crucial to also understand how the courts view their tasks vis-à-vis constitutional interpretation. The approach taken by the court in constitutional interpretation is linked with another basic questions such as (i) do courts make law? And (ii) or do they just declare the law? Constitutional interpretation brings out issues like: (i) Should judges apply the constitution ‘strictly’ in the manner they were understood at the time the constitutional provision was adopted? (ii) Should the judge independently determine the core societal values to be protected by the provision and disregard historical limitation so that the values may be fully protected? In Malaysia, judges have resorted to the approaches discussed above in the process of interpreting the provisions of the Constitution. The Seperation of Powers: Conclusion: One of the prime tasks of a court in any democracy is to interpret the written words of the constitutional document. To understand how courts have reached their decisions on constitutional issues, it is crucial to also understand how the courts view their tasks vis-à-vis constitutional interpretation. The approach taken by the court in constitutional interpretation is linked with another basic questions such as (i) do courts make law? And (ii) or do they just declare the law? Constitutional interpretation brings out issues like: (i) Should judges apply the constitution ‘strictly’ in the manner they were understood at the time the constitutional provision was adopted? (ii) Should the judge independently determine the core societal values to be protected by the provision and disregard historical limitation so that the values may be fully protected? In Malaysia, judges have resorted to the approaches discussed above in the process of interpreting the provisions of the Constitution. The clearest exposition of the doctrine can be found in the French writer/philosopher Montesquieu’s De L’Esprit des Lois (or ‘The Spirit of the Laws’) published in 1748. In essence, Montesquieu states that the three organs of government- the executive, legislature and judiciary- should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true ‘separation of powers’. Montesquieu claimed that if all the three powers provides to the forum to make the government accountable to the electorate. (see Art 44- where the power to make law is vested in Parliament. But take note of Articles 73-79 dealing with distribution of legislative powers) Executive organ- The role of the executive is to formulate and implement government policy or policies across all governmental activities. (See Art 39- where the power to govern is vested in the YDPA and exercisable, subject to the constitution & federal law, by him or by the Cabinet or by any Minister authorised by the Cabinet. But take note of Articles 80-81 dealing with distribution of executive powers) Judicial organ-The main function of the judiciary is to interpret the law passed by the legislative organ. The judiciary also settles disputes. (See Art 121- where the power to hear and determine disputes and to punish offenders is vested in the judiciary). Whether there are Overlaps within the Three Organs of the State/Government: Overlaps exist within the three organs of the State in three different situations especially between the legislature and the executive i.e. membership/personnel, functions and powers. As to personnel/membership, it is imperative to make reference to the position of the YDPA. The YDPA who is the ceremonial executive is an integral part of the Parliament (legislature). See Art 44 stating that Parliament shall consist of the YDPA and the two Majlis. Still on personnel/membership, the PM and his Cabinet who form part of the executive are required by the constitution to be members of either House of Parliament. (See Art 43(2)(a) & (b) of the Federal Constitution). As to functions, the executive organ is viewed as performing the function of the legislature with respect to delegated legislation. A delegated legislation is law made through powers delegated by the legislature to a body or person (this can be a Minister who is part of the executive organ) via an enabling or parent statute. Still on functions, the legislature is viewed as performing the function of the executive through parliamentary procedures like question time, debates and select committees. Though there may be no overlaps in membership regarding the position of the judiciary and the legislature, it is important to note that we do have overlaps as to functions. For example, the legislature is viewed as performing the function of the judiciary by regulating its own composition and procedure like enforcement of breach of parliamentary privilege or contempt of parliament. (See Art 63(1) which states that the validity of any proceedings in either House of Parliament or any committee shall not be questioned in any court). As to the relationship between the judiciary and the executive, though there may be no overlaps in membership, Malaysia’s executive arm has always dominated the government, more so in recent years at the expense of the judiciary, generally the weakest arm of the tripartite structure. Still on the relationship between the judiciary and the executive, it is important to note that the decline of the equal status of the judiciary is due to two principal factors. First, the executive sees itself as the legitimate representation of the popular will expressed through its election and control of Parliament. This is also interpreted as a mandate for its legislative programmes and therefore, resents judicial pronouncements that challenge legislative or executive acts (see the Judicial Crisis of 1988). The second factor causing the judicial downgrading flowed from earlier events, that is, the enactment of the Constitutional (Amendment) Act, 1988. The enactment of the Amendment severely restricted the constitutional role of the judiciary and left no doubt as to its functions (see Art 121- Judicial power is no longer “vested” in the courts and their jurisdictions and powers are defined by laws enacted by Parliament). Looking at the relationship between the judiciary and the executive, the executive arm plays a vital role in the appointment of judges of Federal Court, Court of Appeal and of the High Courts (see Art 122B where the YPDA acts on the advice of the PM in appointing the judges). See also the appointment of the judicial commissioner under Art 122AB. Would the executive participation in the appointment of judges of the superior courts lead to a conflict of interest? Probably yes and no. No because of the availability of safeguards i.e. Art 123 interference by the executive or the legislature. These includes: the procedure for the removal of superior judges (Art 125(3)); guarantees on the judges’ remuneration and terms of office (Art 125); prohibitions on public discussion on judges’ conduct (Art 127); and power of the judges to punish for contempt (Art 126). Whether the checks and balances available are effective: Some of the checks & balances are not really effective due to the following reasons: The government which usually controls an overwhelming majority in Parliament tends to dictate its legislative programme. Constitutional role of the judiciary severely restricted by the enactment of Constitutional (Amendment) Act, 1988 (see Art 121- where judicial power is no longer “vested” in the courts and their jurisdictions and powers are defined by laws enacted by Parliament). Before the amendment, the Art clearly stated that judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status… and in such inferior courts as may be provided by federal law. Availability of latent threats. This latent threat exists as finance and other resources necessary for the judiciary to carry out its functions effectively are basically under the control of the executive. (See the award of titles such as Tunship, Tan Sriship etc and also the executive being in position to distribute business opportunities etc something that is normally sought after retirement). Executive organ being able to come up with a legislation going contrary to the Constitution i.e., emergency provisions, etc. Looking at the commentary of Art 122B, the PM could insist on the appointment of a judge even if the Conference of Rulers did not agree or withheld its views or delayed the giving of its advice to the YDPA. The appointment of judges is a matter between the YDPA and the PM personally. The PM need not respond to a request from the Conference of Rulers for revocation of an appointment which has already been made. It is only consultation. This means no consent is required and it is not binding. By law, judges of the subordinate courts are part of the Judicial and Legal Service of the Federation and are transferable from the Bench to the AG’s office/ chamber. Weaknesses of the parliamentary procedures such as question time, debates and the committees. For example, question time is viewed as a mere parliamentary ritual. Lack of equal information to the Members of Parliament i.e., those from the opposition parties lack information and thus unable to play the role of a check and balance effectively. Reforms: To enforce executive responsibility- Some clear-cut criteria ought to be established for the placement of parliamentary questions on the daily agenda. Greater openness and transparency in this area will allay the suspicion that embarrassing questions are “killed” by placing them at the bottom of the list. To ensure close scrutiny, important Bills should be committed to Special and Select Committees of each House. This will facilitate the involvement of social action groups and public-spirited citizens in the work of Parliament at the Committee stage. The 1994 Code of Ethics (see Art 125 (3B) of the Federal Constitution) provisions must be made clear and there should be no selective implementation of it. At present, there is a total sense of confusion i.e. what would amount to a breach of the Code of Ethic and who defines improper behaviour of a judge. Increase on the investigatory powers of Parliament i.e., there should be a clear line drawn up as to what information is detrimental to the security of the State and the public as well. The Senate should be an effective revision/delaying chamber to Dewan Rakyat Bills. It should be more willing, unlike in the past, to amend Dewan Rakyat Bills. Administrative independence is needed i.e.; to restore Parliament’s institutional independence, the Parliamentary Service Act should be re-enacted to put Parliament in charge of its own staff and establishment. The administration of its budget, the grant of leave to officers of the Houses, the approval of claims etc must be in the hands of the President of the Senate and the Speaker of the Dewan, and not in the hands of executive officials. Judges of the Sessions and Magistrates’ courts should not be transferred from the Bench to the AG’s Chambers and government departments. Also, the link of doctrine could be understood by way of making reference to Art 4 of the Constitution. Why? Because the purpose of Art 4 is obviously to establish the Constitution as the basis of the ‘rule of law’. It must be noted that Art 4 which is viewed as the basis of the doctrine of the ‘rule of law’ under the Malaysian Constitution could be said to be diluted by two features in the Constitution. The two features are: (a) amending power conferred on Parliament in respect of the Constitution under Art 159 & (b) the law-making power confided in the executive (on whose advice the YDPA is bound to act) under Art 150. All in all, the ‘rule of law’ is part and parcel of the Malaysian Constitution irrespective of the two features mentioned above. See the case of Loh Kooi Choon v. Government of Malaysia 2 MLJ 187- where federal court Raja Azlan Shah observed: “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”. Importance of the Rule of Law: It requires that no one be punished except for a conduct which represents a clear breach of law. All laws should be prospective, open and clear. (See the case of PP v Mohamed Ismail 2 MLJ 219- where the defendant was charged with drug trafficking which was punishable with life imprisonment or death under sec 39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended to provide for a mandatory death penalty. At the close of the trial, the public prosecutor invited the court to impose the enhanced penalty. In refusing the request, the judge held that the amendment could not apply to the defendant’s case as it was enacted after the offence was committed). Decisions made by those in authority must be made in accordance with law (supremacy of law-see Art 4(1) of the Federal Constitution. All government actions must be authorised by law. Government of the day must also respect the law. (See the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor 3 MLJ 265-where 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). All government and public officials are accountable to law i.e., the government itself is subject to law. The government and its officials should not have any special exemptions or protections from the law. This could best be understood through the operation of judicial review. (See the case of Chai Choon Hon v Ketua Polis, Daerah Kampar 2 MLJ 203- in which a condition, attached to a police permit to hold a DAP dinner, that there should be only seven speakers, was struck down because ‘rule of law’ can the permit already imposed a time limit, which rendered the condition unnecessary. Laws need to advocate for equality irrespective of rank and status in a given society. Laws must not be gender bias etc. (See Article 8(1) and (2) of the Federal Constitution). Courts have an important role to fulfil i.e., that when they construe the words of the statute, they should restrict the meaning of that statute as far as possible so that it does not unduly infringe upon citizens rights. Hence, the independence of the judiciary must be guaranteed, and courts must be accessible. Court must be viewed as the custodian of rights & as well as upholding the supremacy of the Constitution. Note: Though the rule of law is viewed as an important concept or doctrine, there are also some criticisms regarding this doctrine e.g. the supremacy of the constitution is a fallacy especially in the context of the ouster clauses in the constitution itself; the government must possess clearly defined powers to authorise its actions seems not to be true even though we have a written constitution; the notion of equality before the law is surrounded by a lot of grey areas; etc. Conclusion: 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. The ‘rule of law’ implies the function of his office. Note: Rules about security of tenure laid down in Art 125 do not apply to judicial commissioners appointed for limited durations under Art 122AB, judges of Sessions and Magistrate’s courts, syariah court justices and chairpersons of statutory tribunals. c) Terms of service: Superior court judges enjoy terms of service that are more favourable than those of civil servants. Under Art 125(1), their retirement age is 65 years and can be extended by six months. Under Art 125(7), their salaries and other terms of service including pension can be improved but cannot be changed to their detriment. (d) No judge may be transferred by other than the Chief Justice (see Art 122C stating that the YDPA cannot transfer a judge except on the advice of the Chief Justice). Neither may a a judicial officer of a subordinate court be transferred except by the Chief Justice. Otherwise, an unpopular might be transferred a thousands miles away a few months before his retirement. By contrast, a civil servant is transferrable simply by the Government. (e) Insulation from politics: To protect the judiciary against politically- inspired criticisms, Art 127 bars parliamentary discussion of the conduct of judge save on a substantive motion supported by not less than one quarter of the members (see the case of Raja Segaran a/l S Krishnan v. Bar Council Malaysia & Ors 1 MLJ 34). Also, under Art 125(6), the remuneration of judges is charged on the Consolidated Fund and is thereby excluded from the politically-charged budget debate. By statute, judges are disqualified from membership of either House of Parliament and the state assemblies. Conventionally they refrain from any activity that would draw them into controversy. (See also sec 3(i) of The Judges Code of Ethics (1994) bars all superior court judges from being a member of any political party or participating in any political activity) (f) Contempt of Court: A judge may punish for contempt of court. Contempt of court means interfering with the administration of justice, doing anything to bring the judiciary into contempt and disrepute, and in any way scandalising the courts and diminishing public confidence in the judiciary. Thus, Art 126 confers on the courts the power to punish for contempt any person who, interferes with the administration of justice or challenges the dignity or independence of the courts. (See the case of MBF Holdings Bhd & Anor v. Houng Hai Kong & Ors 2 MLJ 516- where the Court stated: “it is of paramount importance in the public interest that every court should have power and authority or jurisdiction to punish persons who scandalise it or disobey orders made by it…”). g) Judicial Immunity: In the performance of their judicial functions, all judges are immune from the law of torts and crime. A judge enjoys absolute privilege in regard to what he says and does in court so that he cannot be harassed by defamation suits. This is to enable him to say during a trial what he thinks of parties, witnesses and counsel, if any of them has behaved unfairly. h) Court system: The existence of courts, the judicial hierarchy, the jurisdiction and composition of the courts is prescribed by the law and is not open to tampering by the secure Executive. The Constitution prescribes the maximum number of judges for the superior courts (see Articles 122, 122A & 122AA) so that it is not possible for the government to pack the courts with political sympathisers. But to meet the backlog of cases, the Constitution gives power to the King to increase the number of the Superior Court judges. (See e.g. Article 122(1A)). Some Weaknesses Regarding Judicial Independence: Lately, the system of appointment has been subjected to critical scrutiny. For example, it has been noted that most appointees tend to be from the Judicial and Legal Service and not from the Bar. This has been criticised as providing scope for patronage and which may lead to conflict of interest. (See the case of Dato’ Seri Anwar Ibrahim v. PP 2 CLJ 570, where the Court made it clear that the actual appointing authority is the PM. The YDPA could not but follow the decision made by the PM). In other words, the PM could insist on the appointment of a judge even if the Conference of Rulers did not agree or withheld its views or delayed giving of its advice to the YDPA. The appointment of Majesty the Sultan and Yang Di-Pertuan or by the Government. (3) The Attorney General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence other than — (a) proceedings before a Syariah Court, subject to the provisions of any written law to the contrary; or (b) proceedings before a Court Martial, subject to the provisions of any written law to the contrary. (4) In the exercise of this power, the Attorney General shall not be subject to the direction or control of any person or authority. (5) The Attorney General shall have the right of audience in and shall take precedence over any other person appearing before, any court or tribunal in Brunei Darussalam. (6) The Attorney General shall hold office during His Majesty the Sultan and Yang Di-Pertuan’s pleasure, but he may at any time resign his office. Constitutional Amendments: Introduction: Constitutional amendments are something that are difficult to avoid especially if a constitution is more of a working document than a brief statement of basic rules and ideals. But whatever the case a balance must be struck between those competing considerations. On the one hand a constitution is the basic law, containing fundamental rules about state running and so on. But at the same time a constitution is also the document that codifies various safeguards which cannot be taken away easily. In the case of the Malaysian Constitution, it is even more complex as the constitution is also a compilation of compromises between races, royalty and commoners, the states and the federation and so on. Amendments to the constitution may also involve more than questions of procedure. At times other questions such as the implication of the proposed amendment on the entire constitutional structure need to be considered as well. As a man-made document, a constitution must be able to adjust itself to the ever-changing world. Without such mechanism of change a constitution may become stale and irrelevant let alone be able to provide solutions to the country’s problems. Of course, one may argue that amendments could be both formal and informal; the informal ones include the interpretations by the courts and, to a certain extent, by the way laws and policies are framed. As a matter of fact, there are statutes which basically alter or vary the contents of the provision of the constitution. In this respect, there are some criteria which are quite useful as practical guidelines. Amending procedures should ensure that: (i) the constitution should only be changed after deliberations, (ii) the people should be consulted, (iii) in a federal system provisions are only alterable upon agreement of the parties and not on the unilateral action of the central government alone and (iv) the rights of the minorities including those concerning their language, religion and culture would be protected. Procedures/Methods of Amending the Malaysian Constitution: The philosophy behind the amendments procedure in Malaysia has been laid down by the Reid Commission; namely that the methods “should not be too difficult as to produce frustration nor too easy as to weaken seriously the safeguards of the Constitution”. There are four different ways of amending the Federal Constitution as laid down in Arts 159 & 161E. (a) Through a simple majority both at the Senate and the House of Representatives. (b) The support of two-thirds majority of the members of both Houses. © The support of two-thirds majority of the members of both Houses but with the consent of the Conference of Rulers. (d) The support of two-thirds majority of the members of both Houses but with the consent of either the Yang di Pertua Negeri of Sabah or Sarawak. According to Raja Azlan Shah FJ (as he then was) in Loh Kooi Choon v Government of Malaysia 2 MLJ 187 at p 188, “Our Constitution prescribes four different methods of amendment of the different provisions of the Constitution: (1) Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Art 159, and are specifically excluded from the purview of Art 159; (2) The amending clause (5) of Art 159 which requires a two-thirds majority in both Houses of Parliament and the consent of the MLJ 70 that the basic structures of the Malaysian Constitution would consist: (a) supremacy of the Constitution; (b) constitutional monarch; (c) that the religion of the Federation shall be Islam and that other religions may be practised in peace and harmony; (d) separation of powers of the three branches of Government; and (e) the federal character of the Constitution. The court in Phang Chin Hock highlighted that the distinction between the Malaysian Constitution and the Indian Constitution is that the Malaysian Constitution does not have a Preamble, a Directive Principles and was not made by a consistent assembly. However, the court declined to make a conclusion whether there is an implied limitation on the power of Parliament in not destroying the basic structure of the Constitution through constitutional amendment. It is important to note that the Malaysian courts have declined to follow the Kesavananda doctrine (see Government of the State of Kelantan v Government of the Federation of Malaya & Anor MLJ 355; Loh Kooi Choon v Government of Malaysia 2 MLJ 187; Phang Chin Hock v PP 1 MLJ 70). It would suffice to note that the Kesavananda doctrine is not applicable to our Constitution. Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament’s power to amend our Constitution is limited the same way as the Indian Parliament’s power to amend the Indian Constitution. Is the “basic structure doctrine” a good thing? From the point of view of the fundamentals, the doctrine is good. But the problem is, it is not easy to identify the matters that form the basic structure. And questions may arise as to what would happen when the people- not through their representatives but through other means such as a referendum want the so-called basic structure be amended or even abolished altogether? Obviously, the people could not be denied from having a say to determine what is/are the basic structure of the Constitution. Amendment of Constitution. 85. (1) His Majesty the Sultan and Yang Di-Pertuan may, by Proclamation, amend, add to or revoke any of the provisions of this Constitution including this Article; and this Constitution shall not otherwise be amended, added to or revoked. (2) His Majesty the Sultan and Yang Di-Pertuan shall consult the Privy Council in relation to the exercise of the powers vested in him by this Article but His Majesty the Sultan and Yang Di-Pertuan is not bound to act in accordance with the advice of that Council. (3) His Majesty the Sultan and Yang Di-Pertuan shall not make any Proclamation for the amendment or revocation of any provision of this Constitution unless a draft of the Proclamation has been laid before that Council to enable the Legislative Council to determine if any amendments to the draft of the Proclamation should be made. (4) If no amendments are proposed by the Legislative Council within 14 days, His Majesty the Sultan and Yang Di-Pertuan may proceed to declare the Proclamation; if amendments are proposed by the Legislative Council within 14 days, the Speaker shall, within 14 days of that Council making the proposal, submit a report to His Majesty the Sultan and Yang Di-Pertuan giving a summary of the debate and the reasons for the proposed amendments. (5) His Majesty the Sultan and Yang Di-Pertuan having considered the report of the Speaker may declare that the Proclamation shall have effect under Clause (1) either in the form in which it was laid before the Legislative Council or with such amendments as His Majesty the Sultan and Yang Di-Pertuan shall think fit. Conclusion: Admittedly, whether the frequency amendments is necessarily a bad thing is difficult to say. Or whether the constitutional amendments thus far have changed the original nature of the Malaysian Constitution. But whatever one has to say, one has to begin by looking at the number of amendments that have been made since 1957. On the record, Malaysian constitution has been amended 61 times. This may create the impression that the Federal Constitution has been amended so often so much so that the existing Constitution is different from the one accepted on 31 August 1957. More so when one compares that with the American Constitution, which began operation in 1787, but has only been amended 27 times in the period of more than offence). The principle is that no man should be placed in peril of legal penalties more than once on the same accusation. Section 303 of the CPC contains a similar rule. It is a principle of justice that after the appeal process has been exhausted, there should be finality to a judicial verdict. It would suffice to note that so strongly is this rule entrenched in the firmament of criminal justice that even if the law is subsequently amended; even if new evidence comes to light; even if an acquitted person voluntarily makes a confession; or even if defence witnesses recant, the earlier trial cannot be reopened. The verdict in the earlier trial is final for all times to come. Exceptions to Art 7(2). The Art does not forbid retrial in a number of situations. (i) Discharge: A discharge does not amount to acquittal for the purpose of autrefois acquit. A discharge is a decision to discontinue a trial because of various reasons like failure of prosecution witnesses to appear or difficulty in obtaining evidence or repeated requests by the Prosecutor for postponements. In cases of discharge, the substantive issues are not looked into and a retrial is a distinct possibility. In Uthaykumar a/l Ponnusamy v PP 5 MLJ 433- where it was stated that a “discharge” does not release or relieve the accused from suspicion. It does not amount to a verdict of ‘not guilty’. It does not bar re-arrest and retrial on the same charge at some future date. In Sau Soo Kim v PP 2 MLJ 134 and PP v Lee Chan Sang 1 MLJ 224- where lower courts prematurely granted an acquittal without going into the merits of the case, the superior courts set aside the verdict of acquittal. Another exception in the operation of Art 7(2) is that of (ii) Quashing of earlier trial: The rule against double jeopardy does not apply if the previous trial was quashed and a re-trial ordered. See the case of Sau Soo Kim v PP mentioned above. In Fan Yew Teng v PP 2 MLJ 235- where an MP was prosecuted and convicted of sedition. On his application the entire proceeding was quashed because of a failure to hold a mandatory preliminary enquiry. Subsequently, the MP was prosecuted again for the same offence and it was held the first trial having been quashed, the retrial does not violate the principle of autrefois convict. Still under the exceptions to Art 7(2), reference can be made to (iii) Different offence- If in the subsequent trial, the accused is tried for a different offence on the same set of facts, there is no violation of the Constitution if the accused could not have been charged with or convicted of that different offence in the court which convicted him first. In Jamali Adnan v PP 1 MLJ 163- it was held that ‘different offence’ means an offence, whose ingredients are not the same. In Nadarajan a/l Somasundram 2 MLJ 657- it was held that the different offence could be based on the same set of facts as were relied upon in the first trial. These decisions are difficult to reconcile with section 302(1) of the CPC. Also, we have other exceptions in form of i.e., technical areas (e.g., the detention order was wrongly made out, or if the law authorising detention did not apply to the detainee, the detainee may be released. But the release may not bar a subsequent detention order which was properly made out under the correct law. Appeal is also another exception under Art 7(2) e.g., if a person is acquitted and the Prosecutor files an appeal under section 5 of the Court of Judicature (Amendment) Act 1976, there is no double jeopardy. Preventive detention is also an exception to Art 7(2). See the case of PP v Musa 1 MLJ 101. In PP v Musa, it was held that if the detainee was previously under administrative detention under the ISA, there is no bar to subsequent criminal trial on the same set of facts. Likewise, if a person is acquitted by a court of law, there is no bar to a subsequent preventive detention order as in the case of Yeap Hock Seng@ Ah Seng v Menteri Dalam Negeri 2 MLJ 279. Apart from the exceptions addressed above, other exceptions to Art 7(2) are: Disciplinary proceedings. It is important to note that the rule against double jeopardy forbids repeated criminal trials for the same offence. But if the subsequent proceeding is non-criminal in nature and is in a forum different from a criminal court, there is no violation of Art of to a civil power to order

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