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Relationship Between International & Domestic Laws II, Relationship…
Relationship Between International & Domestic Laws II
The role international law plays in the domestic context
Before Independence:
Same as British practice
Doctrine of transformation-treaties
Doctrine of Incorporation-Customary International law with supremacy of an Act
Courts were established by British = apply British law
After Independence:
No change for reception of treaties
Customary international law - Doctrine of Incorporation = no longer practiced by Malaysian Courts
The FC:
FC is devoid of any reference to international law - there are some provisions that deal with treaty making
Art 74 & 76 to be read together with Fed List
- Federal parliament has the exclusive power to make laws relating to external affairs (including treaties, agreements and conventions
Has the power to implement international treaties and make them operative domestically
S.74(1) FC:
Without prejudice to any power to make laws conferred on it by any other Article.
Parliament may make laws
with respect to any of the matters enumerated in the Federal List or the Concurrent List
Ninth Schedule - Federal List:
External fairs including -
(a) treaties, agreements and conventions with other countries and all matters which bring the Federation into relations with any other country;
(b) implementation of treaties, agreements and conventions with other countries
Executive Authority:
Treaty-making power vested in the executive:
YDPA exercisable by him or by cabinet or any minister authorised by the cabinet
Malaysia is like the UK-Executive, treaty making capacity, power to give legal effect - Parliament
For a treaty to be operative in Malaysia, needs enabling legislation by the Parliament
The doctrine of transformation
Without enabling legislation Malaysian courts will only look at the relevant legislation (national law) and will not look at the treaty at all
Art 39:
The
executive authority of the Federation
shall be vested in the YDPA and exercisable, subject to provisions of any federal law and of the Second Schedule, by him or
by the Cabinet or any Minister authorised by the Cabinet,
but Parliament may by law confer executive functions on other persons
Art 80(1):
Subject to the following provisions of this Article, the
executive authority of the Federation extends to all matters with respect to which Parliament may make laws
and the executive authority of a State to all matters with respect to which the Legislature of that State may make laws
Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012]:
C applied for and obtained employment as a Guru Sandaran Tidak Terlatih (GSTT) - temporary teacher position. At a meeting, she was later asked if she was pregnant and admitted she was. Her placement memo was later revoked. C demanded that her placement be restored but was ignored. She then filed a legal case against the education officers, state director of education, the Ministry of Education and Gov of Malaysia. She argued that her position was revoked because she was pregnant, and it was gender discrimination and breached Art 8(2) FC.
Held: HC ruled in C's favour where her revocation of memo was done because she was pregnant (a form of gender discrimination) = breach of FC
Equality under FC - Art 8:
All persons are equal before the law and entitled to the equal protection of the law
Except as expressly authorised by the FC, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or
gender
in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment
Customary International Law:
Due to its nature, it should be applied by the Court and accepted as law (unless Malaysia is a persistent objector)
But will the courts apply it in the absence of legislation? Difficult to ascertain Malaysian position - case by case basis
PP v Narongne Sookpavit [1987]:
Per Shankar J:
The customary law to which Art 14 of the Convention on the Territorial Sea is said to correspond may be the customary law of England or it may be customary international law
Int he court below me, defence counsel seemed to suggest that it was self-evident that such customary law was part and parcel of Malaysian law. I am far from satisfied that thsi is the case... S.13 and 14 of the Evidence Act 1950 require evidence to be given of a custom before the Court can reach a positive conclusion as to its existence... No such evidence was led in the Court below
Held:
(3) that the material before the Court in this case was indadequate to come to any positive conclusion as to whether innocent passage through Malaysian territorial water is a right and if so what were its precise limits;
(4) that even if there was such a right of innocent passage and such right was in conforminty with customary English law or customary international law as it is applied in England, the passage by the accused person in the circumstances of this case could not be regarded as innocent passage since it contravened Malaysian domestic legislation (Malaysian Fisheries Act 1963)
Post Independence - S.3(1) Civil Law Act 1956:
Save in so far as other provision has been made or may hereafter be made by any written law in force in the Federation or any part thereof, the Court shall apply the common law of England and the rules fo equity as administered in England at the date of the coming into force of this Act;
Provided always that the said common law and rules of equity shall be applied so far as the circumstances of the States and Settlements comprised in the Federation and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary
English common law is to applied by Malaysian courts in the absence of any written law and so far as the circumstances of the Federation and its inhabitants permit and render necessary
The application by a Malaysian court of English Common law - would be the same to applying the rule of CIL
Village Holdings Sdn Bhd v Her Majesty The Queen in Right of Canada:
Held: Malaysia continued to adhere to the absolute doctrine of state immunity when it comes to impleading a foreign sovereign who declines to submit to jurisdiction. This was based on the English common law position as of 1956. Reflective of customary international law at the time. By applying this through English common law, court indirectly applied customary international law.
Case illustrates hos S.3 Civil Law Act serves as a statutory basis for Malaysian courts to apply principles of international law, albeit indirectly through English common law
Commonwealth of Austrailia v Midford (Malaysia) Sdn Bhd [1990]:
On the issue of immunity of Australia, SC did not apply The Parliament Belge but instead the CA decision in Trendtex and the HoL decision in I Congreso Del Partido which approved the incorporation theroy
But Court did not seem to apply the theory
based on fact that
it was customary international law incorporated into Malaysian law
Abdul Ghafur Hamid @ Khin Maung Sein:
There is no reason why Malaysia should not apply an established rule of customary international law. Malaysia is a member of the international community and not an isolated State, staying aloof and alien, without any relations with other countries
Relations between States are conducted through various rules of customary international law. Without recognising these rules of customary international law, no State can
enter into
relations with oher States
Its therefore submitted that firmly established rules of customary international law accepted by almost all States of the world should be regarded as part and parcel of Malaysian law to the extent that they are not contrary to the Malaysian statutes and public policy of Malaysia
The role of domestic laws plays in the international sphere
Doctrines
Incorporation Doctrine:
Rule of international law becomes part of municipal law without need of express adoption
Automatic unless there's some clear provision of municipal law that precludes use of international law by the municipal court
Transformation Doctrine:
Rules of international law don't become part of municipal law until they're expressly adopted by the State
Transformation by the appropriate constitutional machinery like Act of Parliament
Doctrine grew from the procedure where international agreements are rendered operative in municipal law by ratification of the sovereign
The Application of International Law in the UK Courts
Doctrine of transformation:
international law is
not ipso facto part
of international law. A rule of international law will become part of national law only after the transformation of it into national law by means of statute or an Act of Parliament
Doctrine of Incorporation:
International law is regarded as automatically incorporated in national law - IL is
ipso factor part of national law
and may be applied as such by national courts
Customary international law:
Doctrine of incorporation has become the British approach
Buvot v Barbuit [1737]:
Per Lord Talbot: 'the law of nations in its full extent was part of the law of England"
Changes took place in the 19th century
R v Keyn [1876]:
Held: No British legislation existed which provided for jurisdiction over the 3 mile territorial sea around the coasts
Existed in international law, but its one thing to say that the state had the right to legislate over a part of what had been previously been the high seas, and quite another to conclude that the state's laws operate at once there, independently of any legislation
West Rand Gold Mining Co [1905]:
Lord Averstone - 'Whatever had received the common consent of civilised nations, must also have received the assent of Great Britain and as such will apply by municipal tribunals"
Also noted that any proposed rule of international law will have to be
proved by satisfactory evidence
to have been 'recognised and acted upon by our own country' or else be of such nature that it could be hardly be supposed any civilised state would repudiate it
Modified Incorporation doctrine:
Per Lord Adkin in Chung Chi Cheung v R [1939]:
"International law has
no validity except in so far as its principles are accepted and adopted by our domestic law
... The courts acknowledge the existence of a body of rules which nations accept themselves.
So far as its not inconsistent
with rules enacted by statutes or finally declared by their tribunals
Trendtex Trading Corporation v Central Bank of Nigeria [1977]:
Concerned about claim for a sovereign or state immunity by the Central Bank of Nigeria
Held per Lord Denning, reversed his opinion in Thakrar [1974]:
Incorporation doctrine correct otherwise courts could not recognise changes in the norms of international law
New international rule was established with sufficient certainty unlike R v Keyn
Section 3(1) Criminal Law Act 1967:
'A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large'
MacLaine Watson v Department of Trade and Industry [1988]:
Incorporation approach reaffirmed in this cas e
Treaties:
General rule
- right and obligations arising from treaties have to be transformed into municipal law by Act of Parliament
Constitutional rule of the UK 0 stemming from the fight for legislative supremacy between the Crown and Parliament
Purely a municipal rule and applied in may cases
The Parliament Belge [1979]:
Immunity from legal process could not be extended to other categories by a treaty without parliamentary consent; this would be 'a use of the treaty-making prerogative of the Crown... without precedent, and in principle contrary to the law of the constitution
Treaties cannot operate of themselves within a state, but require the passing of an enabling statute
Maclain Watson v Dept of Trade and Industry and related appeals [1989]:
Lord Templeman - 'a treaty to which Her Majesty's Government is a party does not alter the laws of the UK... Except to the extent that a treaty is transformed into the laws of the UK by statute, the courts of the UK have no power to enforce treaty rights and obligations at the behest of a sovereign government / private individual'
Lord Oliver - 'the non-justiciability of untransformed treaties meant that UK Courts should be wary of referring to such treaties when deciphering the legal relations of parties to a dispute
Arab Monetary Fund v Hashim [1991]:
Facts: Arab Monetary Fund was an international organisation established by an international treaty which UK was not part of. That treaty had not been transformed into UK law, hence Monetary fund had no existence under UK law
Held: Although Monetary Fund couldn't be accorded legal status in the UK, a legal person of the UAE is recognised under normal conflict of laws which gave UK recognition to legal entities created by laws of other states
Case avoids the harsh consequences of the rule by neatly sidestepping the problem
UK Practice:
Lay before House of all Treaties UK has either signed / intends to accede
Text of any agreement requiring ratification, acceptance approval / accession has to be laid down before Parliament at least 21 sitting days before any of these actions are taken - Ponsonby Rule
International law vs Malaysian law
PP v Wah Ah Kee [1919]:
Held: "... the Courts here must take the law as they find it expressed in the Enactments. Its not the duty of a Judge or Magistrate to consider whether the law so set forth is contrary to international law or not".
Relationship between IL and Domestic Law
Introduction
Countries either follow monist or dualist approaches to incorporate IL into domestic legal systems
Monist states intergrate IL directly, while dualist states require legislative actions
Monist States
In monist states, IL automatically becomes part of the national law upon ratification
There's no need for further legislative action
e.g. Austria:
Austria follows the monist approach
In
Re the Application of Adan
the Austrian Constitutional Court dealt with direct application of EU directives
Dualist States
Require IL to be translated into national legislation before it can take effect domestically
International commitments don't alter the national legal framework until this transformation happens
e.g. United Kingdom:
Embodies the dualist approach
In
R v Secretary of State for the Home Department ex parte Brind
HoL demonstrated the necessity for Parliamentary action to incorporate international treaties
Malaysian court's application of IL:
IL can be applied by Malaysian courts through several mechanism, reflecting Malaysia's legal framework and its approach to incorporating international norms into domestic law
Incorporation through Treaties and Conventions
Ratifies treaty - implements obligation through domestic legislation or administrative measures
CIL
Malaysian courts may recognise CIL as part of the common law or as a source of legal principles
Decisions from international courts and tribunals as well as decisions from other common law jurisdictions that recognise CIL may influence Malaysian courts in applying international norms
PP v Zaiduridin bin Mohd Noor [1997]:
Facts: Case centered around retroactive application of a Malaysian penal provision that criminalised conduct retrospectively
FC considered whether the retroactive application of the penal provision violated the principle of non-retroactivity of penal laws (a well-established norm under CIL)
Court referred to international legal principles and precedents including decisions from international tribunals + state practice to interpret scope and application of the non-retroactivity principle
PP v Muhammad bin Juzaili [2005]:
Facts: Case dealt with interpretation of the offence of piracy under Malaysian law and whether alighed with international definitions and standards
FC referred to CIL principles on piracy, as codified in international conventions and recognised by state practice
Court's decision included an analysis of international definitions and jurisprudence to interpret the elements of piracy under Malaysian law, ensuring consistency with international norms
Trendtex Trading Corporation v Central Bank of Nigeria:
Facts: Case involved application of CIL principles on state immunity, particularly the restrictive theory of immunity which limits immunity to sovereign acts and excludes commercial activities
Case demonstrates CIL principles like are incorporated domestic legal systems
Malaysian courts and UK jurisdictions applied principles of CIL to determine whether Nigeria can claim immunity from enforcement of arbitral award
Persuasive common law application by Malaysian courts:
Common law jurisdictions like Malaysia and UK rely on judicial precedents and legal principles developed through case law
In this context decisions from international courts and tribunals + principles of CIL can be persuasive authority when interpreting legal issues
CIL consisting of general state pratice accepted as law (opinio juris) can be persuasive in guiding domestic courts on matters where there's no explicit domestic legislation/precedent
This is especially relevant in areas like human rights, state immunity and international commercial disputes
Constitutional incorporation
Malaysia's FC includes provisions that impact the application of IL, like provisions on human rights and fundamental liberties
Courts may interpret these provisions in light of international standards and jurisprudence
Indira Gandhi v Pengarah jabatan Agama Islam Perak & ors [2018]:
Facts: Case involved the conversion of children to Islam without the consent of 1 parent - raised questions about religious freedom and parental rights under both Malaysian law and international human rights standards
Application of IL: FC considered principles of religious freedom and rights of child under international human rights treaties like Convention on Rights of the Child (CRC). Courts emphasized the need to balance religious freedom with parental rights based on best interests of child
Incorporation vs Transformation
Direct Incorpration in Monist States:
Incorporation in monist states is often seamless as IL is directly applicable domestically without need for additional legislation
Transformation in Dualist States:
Transformation in dualist states require a deliberate act of legislation
Govt must enact laws to reflect international treaties within national legal system
Conclusion
Impact on International Relations:
The approach whether monist or dualist influences how quickly and effectively IL is applied within a state, thereby affecting international relations and compliance
Summary:
Both monist and dualist systems have their merits and demerits
Understanding their mechanisms is crucial for comprehending how states interact with IL