The
last situation brings about the greatest problem of the precedent
system, in that if a higher court overrules a precedent that is quite
old, then it is very likely that many cases that have been decided upon
that precedent will return to court. Therefore, it becomes increasingly
unlikely that a precedent is overruled the older it is is found in
decision of the superior court. Judges are obliged to decide the case
before him by reference to a previous decision when the conditions for
the operation of the doctrine of precedent are satisfied. These are the
previous decision decided in the previous case, so far as its ratio
decidendi is concerned, relevant to the determination of an issue of law
in the case in question, and that the prior court’s decisions are
authoritative for his court, it is a court which is superior to his
hierarchy.
What about Malaysia? Do we adhere to these principles
of judicial precedent? Even when we have statutes, we still look to the
judges interpretation of the law. The statute must be read in the light
of decided cases.
Judges are required to follow a system, which
provides for consistency and certainty in decision. A judge’s decision
in an earlier and similar case constitutes a precedent and may be
binding depending on the hierarchy of the courts concerned. E.g. the
decision of the Federal Court is binding on the other courts, but the
decision of the High Court is binding on the lower courts and not on the
Court of Appeal and Federal Court.
1.11 THE LEGAL INSTITUTIONYDPA
Legislative Executive Judiciary
Constitutional
law is concerned with government in a state. If a question is asked
what government is, we are likely to think of various official powers
which are exercised over us or in short we can say they are the power
organizing structure.
In Malaysia it would be simple enough to
classify the activities referred to the above as legislative, executive
or judicial. As the terms is generally employed, the legislative
activity involves the enactment of general rules for the individuals and
groups in society. The executive function is harder to define, but
includes actions taken for the maintenance of order, in the
implementation of the law, for the defense of the state, in the conduct
of external affairs, and in the administration of internal policies.
Finally the judicial function involves the determination of issues of
fact and the interpretation of law and dealing with crimes or civil
causes by the application of the law to them.
Sometimes the three
functions may be viewed as a combination or sequence. For example it is
the legislative power to increase income tax. Executive action will is
involve in the collection of the arrangements for the tax collection and
the judicial proceedings may be involved when persons are found evading
tax payment. The three functions can be described as making law,
applying law and enforcing law. But some of the activities which we
would classify as executive, including the general conduct of foreign
policy, do not involve the execution of law at all.
The terms
which we have been using, which categorizes the functions of government
as legislative, executive and judicial, has become commonplace in the
description of constitutional arrangements. The terms have been derived
from a doctrine which was developed in the seventeenth centuries in
England and this doctrine is commonly known as doctrine of separation of
powers. It is also natural to use the terms because in many states
there seem to be institutions whose primary functions correspond to one
of these three kinds of activity, whether it is under the influence of
the doctrine or not.
Doctrine of Separation of PowerThe doctrine of the separation of powers is most often associated with French writer
Baron de Montesquieu but it would be a mistake to think that he invented it. The model was first developed by the
ancient Greeks in the constitutions that governed their city-states. However, it first came into widespread use by the
Roman Republic. It was outlined in the
Constitution of the Roman Republic.The doctrine of the separation of power is not a legal principle, but a political theory.
The
doctrine includes a proposition about the functions of government, and
discussion of the forms and functions of government may be traced back
to ancient Greece. In Aristotle’s politics, he distinguishes three
elements in every constitution, which he classified as the deliberative,
the magisterial, and the judicial
Judiciary hears and
determines civil and criminal matters, and pronounces on the legality of
legislative and executives acts. It may also interpret the Federal
Constitution and State Constitution.
The High Court of Malaya and
Sabah & Sarawak, the Court of Appeal and the Federal Court are
superior courts. The general rule is that the Jurisdiction of the courts
increases as one moves upwards .
There are also several
specialised tribunals exercising judicial and quasi judicial functions
eg. Industrial Court and Court Martial. These courts provide an
inexpensive and specialised means of settling disputes between the
parties.
1.12 THE LAGISLATIVE PROCESS IN THE MALAYSIAN PARLIAMENT
The Bill introduced to parliament may be classified as:
a) Private Bill’s
b) Private Member Bills
c) Hybrid Bills
d) Government Bills
The
Bill is normally presented by the Minister to the Parliament A Bill
introduced in either House in accordance with Parliamentary procedure as
prescribed by the Standing Orders usually goes through 4 stages:
1.The First Reading
2. The Second Reading
3. The Committee Stage
4. The Third Reading
To
introduce a bill, it is required to give notice to the Clerk of the
relevant House before which he intents to introduce it. Bills may be
classified as Private Bills, private member’s Bills, hybrid bills or
government Bills.
At the first reading, the Minister merely
mention the title of the Bill and then proceeds to give oral notice as
to when he wishes to move the Second Reading. There is a debate or
amendment at this stage of the proceeding which are but a mere
formality.
This motion, moved by the Minister, requires to be
seconded. By the time this motion is move, the Bill will have been
printed and circulated to all members of the House. Otherwise, the Bill
cannot be presented. It is as this stage that debate on the Bill is
carried out.
At the end of the Second Reading, the Bill is
committed Committee of the whole House. In effect, the House resolve
itself into a Committee on the Bill. This is called a Committee Stage
and it is intended to allow members the opportunity to discuss detail of
the Bill and to propose amendment in a less formal proceeding. When
discussion is completed in Committee, the Minister move a motion to
report the bill under consideration to the House. If the motion is
accepted, the House will resume sitting and this brings the Committee
Stage to an end.
When the house resume sitting, the minister
reports that the Bill has been considered and accepted by the Committee
with or without amendment. When a Bill has been passed in the manner
describe above in either House, it is then transmitted or send to the
other House for Consideration. When the has been considered by the other
House in a similar fashion, it is return to the House from which it
originated. The motion is the final step and article 68 of the Federal
Constitution will become operative.
According to article 68, the
Bill may be presented to the Yang di-Pertuan Agong for his assent after
the lapse of one month if it is a Money Bill and twelve months if it is
not a Money Bill. However, this primacy of the House of Representatives
over the Senate does not exist in the event of a Bill amending the
Constitution. Constitutional amendment requires the concurrence of both
chambers. The function of the Senate is general legislation is of a
revising nature with no real authority to reject measures passed by the
House of Representative.
Although a Minister normally introduces a
Bill, there is nothing to prevent any member either of the government
or the opposition from introducing a Bill, but such a move is unlikely
to succeed unless it commands the support of the government. Bill may
originate from either House with the exception of a Bill or and
amendment concerning any of the matters enumerated in article 67, such a
taxation and expenditure, which must be moved by a minister in the
House of Representative.
The legislative procedure in the State
Assemblies is almost similar to that in the Federal Parliament with some
local variations. Bill are passed by the one-chamber by Legislative
Assembly and assented to by the Ruler or Yang di-Pertua Negeri before
becoming law, and no law can come into force until it is published.
Bills requiring expenditure from the Consolidated Funds have to be
introduced by a member of the Executive Council. State Constitution,
with certain exceptions may also be amended on the same format as an
amendment of the Federal Constitution, that is, supported on the second
and third reading by at least two-third of the total number of members.
The constitutional provisions affecting succession to the throne in the
Malay State may not be the subjects of amendment by the State
Legislature.
1.12.1 Voting
A Bill is adopted by a
simple majority vote of those members present and voting. There are
several exception to this rules, the most significant being
constitutional amendment in accordance with article 159 of Federal
Constitution. Bill shall not been passed in either House of Parliament
unless it has been supported on the second and third readings by the
votes of not less than two-third of the total number of members of that
House.
1.12.2 Royal Assent
The Yang di-Pertuan Agong
is an integral part of Parliament. His assent is normally before a Bill
becomes law. Royal Assent is not effect within a time specified, the
Bill becomes law as if it had been assented. Prior to the amendment,
there was no evidence to suggest that the Royal veto over a proposed
federal law has ever been official existed.
1.12.3 SUMMARY ABOUT HOW A BILL BECOME A LAW(I) First Reading
When
a bill is first introduced in one of the two houses, only its title is
actually read. After the Bill is passed at this stage, its text is
printed and distributed.
(2) Second Reading
Members debate the Bill. If accepted, it is passed on for consideration by a committee of the house.
(3) A Committee of The House
Considers
the Bill in detail and may amend any part of it. The committee then
submits a report on the Bill to the house. If the report is approved,
the Bills goes on to a third reading in the house.
(4) Third Reading
Debate takes place and amendments may be put to a vote. The house then either passes or defeats the Bills.
(5) Other House
When
a Bill has passed one house, it is send to other house, where it
follows a similar pattern. If the second house amend the Bill, the Bill
must be returned to the first house for it approval
(6) Royal Assent
When
the Bill ha passed both house with accordance with article 68, it is
sent to Yang di- Pertuan Agong For the Royal Assent. The bill becomes a
law upon publication.
1.13 Jurisdiction of the CourtsAs
a general rule civil and criminal courts are open to public. When an
accused person has committed a criminal offence and does not plead
guilty, he will be tried in a court of competent jurisdiction. The court
which administer civil and criminal justice are those constituted under
the constitution, or the Courts Judicature Act 1964 or by Subordinate
Courts Act 1948 or by any other law presently in force.
1.13.1 Penghulu’s Court.
Trail Jurisdiction.
Section 95 Subordinates Court Act 1948 provides that :
The
Penghulu’s court can try minor offences listed in the ‘Surat Kuasa’ and
punishable with a fine not exceeding RM 25/-. The Offender must be an
Asian.
Sentencing Jurisdiction
Section 96 Subordinate Courts Act 1948 The penghulu can impose fine not exceeding RM25/-
1.13.2 2nd Class Magistrate
Trail Jurisdiction.
Criminal
Section 88 Subordinate Courts Act 1948 2nd Class Magistrate can try offences punishable with:
a) imprisonment not exceeding 6 months; or
b) a fine only
Sentencing Jurisdiction
Section 89 Subordinate Courts Act 1948 2nd Class Magistrate can punish an offender with:
a) imprisonment not exceeding 6 months, or
b) a fine not exceeding RM 1000; or
c) both
Civil
Section 92 Subordinate Courts Act 1948 – monetary jurisdiction up to RM 3000.00
1.13.3 1st Class Magistrate
Trail Jurisdiction
Section 85 Subordinate Courts Act 1948 – 1st Class Magistrate can try offences:
a) punishable with imprisonment not exceeding 10 years, or
b) punishable with fine only or
c)
under Section 392 Penal Code i.e robbery on the highway between sunset
and sunrise punishable with a maximum of 14 years imprisonment, or
d) under Section 457 Penal Code i.e. house breaking at night to commit theft punishable with a maximum of 14 years imprisonment.
Section 83 Subordinate Courts Act 1948 – 1st Class Magistrate can:-
a) issue warrants, summons or other processes of the court;
b) make orders relating to adjournments, remand, bail and transfer of the case to the sessions court;
Section 9 Criminal Procedure Code gives power and authority to the Magistrate:-
a) to hear criminal trials
b) to issue warrants, summons or other processes of the court
c) make orders relating to adjournments, remand, bail and transfer of the case to the sessions court
d) to hold inquiries of death.
Sentencing jurisdiction:
Section 87 (1) Subordinate Courts Act 1948 1st Class Magistrate can punish the offender with:
a) imprisonment not exceeding 5 years; or
b) fine not exceeding RM 10,000/-; or
c) whipping up to maximum 12 strokes
d) a combination of (a)-(c)
e) in a civil matter the Magistrate can fine up RM 25,000/-
Civil
Section 90 Subordinate Courts Act 1948 – Monetary jurisdiction up to RM 25,000.00
1.13.4 Sessions Court
Trail Jurisdiction
Criminal
Section 64 Subordinate Courts Act 1948 A Sessions court can try any offences except those punishable with death
Sentencing Jurisdiction
Section 64 Subordinate Courts Act 1948 can pas any sentence except death
Civil
a)
Section 65(1)(a) Subordinate Courts Act 1948 - Unlimited monetary
jurisdiction in respect of motor vehicle accidents and landlord and
tenants dispute and distress.
b) Section 65(1)(b) Subordinate Courts Act 1948 – On other matters monetary jurisdiction up to RM250,000.00
c)
Section 66(1) Subordinate Courts Act 1948 – This Court may try matter
even if a counter claim exceeds Plaintiff’s claim but this court will
not give judgement in excess of the monetary jurisdiction limit .
d)
Section 66(2) Subordinate Courts Act 1948. The High Court has the power
to or make an order the matter to be transferred to the High Court.
1.13.5 High Court
Trial Jurisdiction
Criminal
Section
22 Court Judicature Act 1964 - a High Court can try any offences and
offences under Chapter VI of the Penal Court and under any written law
Court may pass any sentence allowed by law including death.
Civil
The
High Court has no monetary limits and can try any case with any amount
of money. The High court can try all matters except which is expressly
excluded by the Federal Constitution.
