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Comparisons of the British / Malaysian Constitution, explain the case of…
Comparisons of the British / Malaysian Constitution
The Federal and Unitary Constitutions
A Unitary Constitution
The UK has a unitary constitution:
There's ultimate legal and political power focused centrally in the Westminster Parliament
Parliament has the legal power in theory to enact powers for all parts and legal jurisdictions (i.e. Scotland, Northern Ireland, England and Wales) that makes up the UK
Parliamentary sovereignty implies a unitary state
Devolution in the UK: devolved matters are legislated by the devolved regions
UK Parliament is now a limited Parliament
Federal Constitution
Unlike the unitary system in the UK and Singapore, Malaysia has a federal form of dual government
There is division in legislative, executive, judicial and financial powers between the Centre and the States though the weightage is heavily in favour of the Centre. Federalism in Malaysia - Malaya shall be a federation of states
Rule of Law
ROL is considered a fundamental to all democratic legal systems
ROL is one of the fundamental principles of UK's unwritten / uncodified constitution
Malaysia is a country founded on basic principles of ROL and democracy
ROL is a key element of constitutionalism ensuring government officials act strictly within their powers and the courts play a crucial role in holding the executives accountable
Government is regulated by the law and not above the law
Apex Court:
Malaysia's justice system was originally based on the British and operates in parallel with Sharia courts
Federal Court
Court of Appeal
High Court
Sessions Court
Magistrates Court
Penghulu's Court / Native's Court
Classic British Court Hierarchy
Religion
Malaysia
Art 3(1): Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation
Inclusion of Art 3 states that "Islam is the religion of the Federation" means that Islam is the State Religion and NOT frame the country as a theocratic state (full Islamic State)
Art 11(4): State law in respect of the Federal Territories is the religion of 'the Federation', Labuan and Putrajaya, federal law may control or restrict the propagation of any religion doctrine or belief among persons professing the religion of Islam
Art 12(2): provides that the Federation and the States may fund or assist Islamic institutions
UK - Role of Christianity
Britain is in some way a more secular society than it once was, but its not a secular state
The monarch promises to uphold Christianity
Largest Christian denomination is the Church of England, which is also the state church
Canon law (Christian) law applies as a matter of personal faith only
Separation of Powers
Political doctrine where 3 branches of government (executive, legislative, and judicial) kept separate to prevent abuse of power
UK has separation of powers
Malaysian Federal Government adopts this principle under Art 127 of the FC, and has 3 branches: executive, legislature and judiciary
UK and Malaysian constitutions don't strictly adhere to the separation of powers
British Monarchy
Constitutional battles over several centuries decisively converted an absolute monarchy into a constitutional one
Constitutional monarchy (aka parliamentary monarchy) is a form of monarchy where the sovereign exercises their authorities according to written / unwritten constitution
Political scientist Vernon Bogdanor defined a constitutional monarch as a "sovereign who reigns but don't rule
Today the position is that the British monarchy is a large figurehead
King is bound by law and convention to remain above political parties and to refrain from intervening directly in government administration
Malaysian Monarchy
Malaysia is a constitutional monarch fashioned after the British model but with local adaptations
On the role of the YDPA and the state rulers, our Constitution is largely fashioned on the British model but with local adaptations
The supreme head of the federation (YDPA) is provided under Part IV Chapter 1 of the FC
Under the FC, YDPA is vested with an array of powers required to perform a myriad of constitutional functions
Rotational Monarchy & the Conference of Rulers
Part IV, Chapter 1 (The Supreme Head of the Federation) and 2 (The Conference of Rulers) of the FC apply in Malaysia
Art 32(3) - YDPA will be elected by the Conference of Rulers for 5 years
They are the protector of the faith, guardian of bumiputra rights, bumiputra sabah + sarawak and
The UK's monarchy by contract is for the lifetime of the reigning monarch unless they choose to abdicate
Fundamental Liberties
Britain: Human Rights Act 1998
Civil liberty traditionally protected in the UK by the common law and by Parliament and the common law courts
Inconsistency of domestic law and the protection with the ECHR, and a desire to stregthen human rights domestically led to the passing of HRA 1998
Malaysia: Federal Constitution
Art 5-13 protects a large number of political, civil, cultural and economic rights:
Liberty of the person
Slavery and forced labour prohibited
Protection against retrospective criminal laws and repeated trials
Equality
Prohibition of banishment and freedom of movement
Freedom of speech, assembly and association
Freedom of religion
Rights in respect of education
Rights to property
Parliamentary Sovereignty
UK
Parliamentary sovereignty is a key principle that underpins the British Constitution
Parliamentary sovereignty is concerned with the legal relationship between the courts and the legislature / Parliament
Crown / Queen in Parliament can legally pass any law. As there is no codified document that stops them from doing so. So Parliament can alter any aspect of the constitution / alter any law they choose
Although there is an absence of legal limitations on Parliament, there will be political and practical restraints on laws Parliament can pass
UK - Parliament cannot bind its successors:
No Parliament can entrench its Acts (i.e. make them amendable / repealable only by way of super-majority) as it will infringe the doctrine of continuing Parliamentary sovereignty
Legislations cannot in law be protected from repeal by a subsequent Parliament
But consider the "constitutional statutes" theory proposed by Laws LJ in Thoburn v Sunderland City Council. No implied repeal to constitutional statute
Malaysian Parliament
Parliament of Malaysia is the national legislature of Malaysia, based on English Westminster system of Parliament
Consists of Dewan Rakyat (House of Representatives / People's Hall) and the Dewan Negara (National Hall / aka the Senate)
Art 4(1):
The Constitution is the supreme law of the Federation and any law passed after Merdeka Day that is inconsistent with the Constitution shall to the extent of the inconsistency, be void
Per Suffian LP in Ah Thian v Government of Malaysia (1976):
"The doctrine of the supremacy of Parliament don't apply in Malaysia. Here we have a written constitution. The power of Parliament and the State legislatures in Malaysia is limited by the Constitution, and they can't make any laws they please"
Amendment of the Constitution
Art 159(1): Subject to the following provisions of this Article and to Art 161(E) the provisions of this Constitution may be amended by the federal law
Art 161(E): Safeguards for constitutional position of States of Sabah and Sarawak
Memberships??
The UK
The UK's membership of the European Union and the Council of Europe:
Impacts of statutes e.g. European Communities Act 1998
Decisions and rulings made by them have an impact European Court of Justice on the British Constitution
Judgements made by the European Court of Human Rights also have an impact on UK
Exit from the European Union:
UK voted to leave the EU via a landmark referendum where results took many by surprise
UK now face navigating unprecedented withdrawal from a Union that was informed the domestic legal machinery for many years
Impact of ASEAN in Malaysia
Absence of comparable supranational mechanism in Malaysia, has no enforcement mechanism for its laws and policies
Consequently, case law from the UK regarding its implementation of the ECHR don't apply to local courts
explain the case of nik ellin for syariah courts