Wednesday, November 14, 2007

Malaysian Jurisprudence - Part 1

The significance and effectiveness of any law depends upon the extent of popular knowledge of its existence, and acceptance of its consequences, by those to whom it applies or to whom it is directed.

Law is but dimly perceived as an instrument of justice. But the courts we know are but courts of law, not justice: for justice is divine, and in the study of law, justice itself has little or no relevance. Law, however, is one of the means by which we strive for justice; but even as we strive, we know that seldom do we succeed, and that the best we can hope for is harmony between the ying and the yang.

Malaysia has adopted a democratic form of government, a form of government based on the principle that political power lies in the will of the majority, and that the elected representatives of the people can give effect to that will. Such form of government can degenerate into a tyranny, for it depends upon the willingness of the minority to accept the will of the majority, or if the law devised did not represent a balance between what is ideal, and what is possible, and the absence of decency and fair play by those in power which are the basic fundamentals for maintaining the harmony of society.

When we use the word "Law" we invoke a concept of equality, that all are to be treated equally. Article 8(1) of the Federal Constitution states that "all persons are equal before the law and entitled to the equal protection of the law."

The law thus seeks equality, yet it imposes different burdens upon different classes of persons. The courts have to seek to reconcile these conflicting interests by evolving the doctrine of reasonable classification. The basis of this doctrine is that the guarantee of equality before the law and equal protection of the law does not require all persons to be treated alike, but that only persons in like circumstances must be treated alike.

Aristotle noted that "it is thought that justice is equality, and so it is, though not for everybody but only for those who are equals, and it is thought that inequality is just, for so indeed it is, though not for everybody, but for those who are unequal..."

Aristotle's doctrine was reflected in Article 153 of the Federal Constitution, which provides for certain privileges for Bumiputeras; the rationale is that, these people set out from a position of disadvantage and inequality of opportunity. On this assumption the law therefore interposes in a rough and ready fashion, a sort of machinery to redress the inequality so perceived.

In Sadurski's view, "equality before the law requires equal treatment of relevantly equal people. It is not that we believe that the law is just by virtue of its being equal but rather, we believe that it is equal on the basis that it is just."

In John Rawls A Theory of Justice, "in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer assets and to those born into the less favourable social positions. The idea is to redress the bias of contingencies in the direction of equality."

All these are reasonable enough, but the nature of the handicaps suffered and the price to be paid by the society, rich and poor alike, for the removal of this bias id not so easy to assess. What was evidently clear is the fact that "preferential treatment" does not cure causes,; it operates only in the sphere of consequences. In Brennan J's view, "Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities in the political, economic, social, cultural or any other fields of public life."

Discussion of Article 153 of the Constitution is unfortunately inhibited by the Sedition Act; it is seditious to question any privilege established or protected by Article 153 except in relation to the implementation.

Law and Sovereignty: One of the paradoxes of law is that law requires the existence of some sort of sovereign authority, coupled with the maintenance of machinery that will keep that sovereign in check and responsible to some sort of lawmaking assembly that is representative of the will of the people.

Bodin, who produced a theory of sovereignty in 1576 saw law as the command of the sovereign. John Austin states that "the matter of jurisprudence is positive law; law, simply and strictly so called; or law set by political superiors to political inferiors. Austin develops the famous theory of sovereignty, the essence of which resided in the notion of the "habitual obedience" to a determinate and common superior. For Austin, law was the command of a sovereign which requires obedience from those who habitually obeyed.

It is impossible to understand the concept of sovereignty in Malaysia, except in Malaysian terms. The notion of sovereignty assumes that within every political and legal system, there is some authority - the sovereign - whose decision on all issues is final.

The Malacca Sultanate has had a profound influence upon the development of the concept. The Sultan had absolute authority. The office of the Sultan combined both temporal and spiritual elements and these elements were strengthened by our traditional Malay concept known as "Daulat" which can be interpreted as 'sovereignty'. Daulat thus entails unquestionable loyalty from his subjects. Out of the past has emerged the present concept of sovereignty in Malaysia.

While the word "kedaulatan" is generally accepted as to mean sovereignty, the word "Kerajaan" indicates the condition of having a "Raja" but sometimes, it denotes governmental authority.

The idea of a "social contract" under which men surrender their rights to a Ruler in return for his protection, is generally regarded as false, yet it is astonishing how persistent it is, even today. In Thomas Hobbes view of which his view persist in our Malaysian law, the sovereign was never a party to the contract and was not to be bound by it. According to S.63 Interpretation Act 1967, "No written law in any manner whatsoever affect the rights of the Yang diPertuan Agong or the Government unless it is expressly provided or it appears by necessary implication that the Yang diPertuan Agong or the Government, as the case may be, is to be bound thereby." Article 181 of the Federal Constitution provides that "no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity." This was modified in 1993 where the immunity was removed by an amendment Act A848. Under the amendment a Ruler can besued or tried by a Special Court set up under Article 182.

The word sovereign inevitably invokes a consideration of the word prerogative, which means exercising a privilege. Royal prerogatives are those attributes of a Ruler in that they are not bound or limited or regulated by written law. The advent of constitutional government in Malaysia marked the beginning of the end for the royal prerogatives of the Malay rulers and that the sovereignty was now subjected to the control of an omnipotent parliament.

However, part of the attributes of the Rulers' prerogatives are assiduously preserved in so many areas of law. That the royal prerogatives have survived is due in part to political necessity, and in part to human vanity (such as the proliferation of titles and decorations).

Abolish the Rulers, and they would in all probability be replaced by others who, in due course of time, would assert the same prerogatives; perhaps wearing other names and adopting other forms, but preserving the same substance.

Sovereignty is much a political fact as well as a legal fact. A constitutional ruler is one who rules in accordance with the constitution and under the democratic parliamentary system, a Ruler does as he is told by the elected representatives of the people. Sovereignty is not always where it seem to be. The ultimate power in the State would now be the State Legislative Assembly, a body consisting entirely of elected members and under the Federal Constitution, the power rests with the parliament under the leadership of the prime minister.

Looking ahead, there is certain naivety in the belief that the blaze of independence, the Rulers would lose all their authority and become the creatures of politicians. The credentials of some of those politicians were, after all, quite often far from impeccable, and alas, they remain so. Now it seems some of them had perpetuated the age of moronism.

In years to come it is hope that the law may perhaps be seen as something for the barbarians, as rules no civilised man will need, for men will observe them by instinct. Whether that golden age will come is to be doubted, for the varied appetites of man-in-power have created so complex a series of system of laws, so costly an apparatus for the imposition of order and the control of the environment, that the laws of men seem likely to grow more insidious year by year.

(Note: This essay is an abstraction from the essays written by R.H. Rickling in his work, Malaysian Law: An Introduction to the Concept of Law in Malaysia; Pelanduk Publications, 2001)

1 comment:

Elmina Kenley said...

Its really very informative post.i have also few knowledge about Law Essay