WEEK 6: SOURCES OF LAW

Question 1

Importance of knowing the source of law

Answer 1

• make effective use of legal sources is important for those in the legal industry (lawyers, judges, legal advisors, etc)
• judges will have something to refer to in order to make a court proceeding; referring to a wrong source will lead to a wrong judgement.

Question 2

What is a judgement made per incuriam?

Answer 2

per incuriam = judgement made without taking into account judicial precedents of superior courts.

These judgements do not have to be followed as precedent by a lower court.

Question 3

There are two types of legal sources, what are they?

Answer 3

Historical and legal sources.

Question 4

What can you tell us about the historical sources of law?

Answer 4

• these indicate the factors which have been influential in the development of law but not actually recognised as law.
  eg: religious practices, local custom, beliefs, opinion of a jurist.

Question 5

What can you tell us about the legal sources of law?

Answer 5

• legal rules that make up the law; written and unwritten.

Malaysian law is derived from both written and unwritten law.

Question 6

Where can the law be found?

Answer 6

statues, law reports, textbooks, decisions of the court.

Question 7

There are two types of sources of law; primary and secondary.

How do you differentiate primary sources from secondary sources?

Answer 7

Primary sources are:

• actual laws.
• authoritative in supporting argument.
• binding in courts, some are only persuasive.
• issued directly from the law making body (official bodies from the three branches of government.)

Question 8

What do primary resources contain?

Answer 8

Laws, orders, decisions, or regulations issued by a governmental entity or officials, such as the court, legislature, or executive agency.

Question 9

What are the primary sources of law?

Answer 9

• constitution
• legislation
• delegated legislation
• case law
• conventions and treaties

Question 10

What is a constitution?

Answer 10

a collection of basic principles and guidelines that determine how a country is established and governed as prescribed by laws, customs, or rules which are generally accepted.

Question 11

What does a constitution mean and what does it do?

Answer 11

• fundamental law; written or unwritten.
• establishes the character of a government by defining the basic principles to which a society must conform.
• describes the organization of the government and regulation, distribution as well as the limitations on the functions of different government departments.
• prescribes the extent and manner of the exercise of its sovereign powers.

Question 12

What are the other functions of a constitution?

Answer 12

1) Determines how public decisions are made by the government.
2) Sets the distribution of power among government agencies.
3) Sets the limits of the government authority and ways of choosing and electing a government.
4) Provides assurance and protection to the people (special rights and freedom of rights)
5) Guideline for the creation of laws on either side (whether it is the government or people).

Question 13

What are the different types of constitutions?

Answer 13

• written
• unwritten
• rigid
• flexible
• federal and unitary
• monarch and republic
• presidential and parliamentary

Question 14

Written constitution

Answer 14

• a single document; describes the arrangement of governance in a country.
• precise and systematic.
• also known as the codified or enacted constitution.
• creation is defined as a deliberate effort of the people.
• generally rigid; a defined procedure that is different from the procedure of making or amending ordinary legislation.

Eg of countries with this constitution: Malaysia, USA, India, Russia, France, Germany, Nigeria.

Question 15

Unwritten constitution (evolved constitution)

Answer 15

• legal body; constitutional principles not written in a single document.
• derived from a number of sources (conventions, traditions, and customs, acts of parliament, common law) that are partly written and unwritten.
• result of the historical development of a country.
• flexible in nature; amendment procedure is simple as there is no difference in the procedures in making ordinary legislation and amending the constitution.

Eg of country with an unwritten constitution: British Constitution.

Question 16

Rigid constitution

Answer 16

• difficult and seldomly amended.
• stipulates that at least some part of the constitution cannot be modified by the same procedures used to enact statutory law.

Eg: constitutional amendments of the US constitution cannot be made by an ordinary Act of Congress - requires supermajorities at both the ratification and modification stages.

• 2/3 majority in each House of Federal Congress.
• ratification by at least 3/4 of the legislatures of the individual states of the Union.

Majority of countries have rigid constitutions.

Question 17

Flexible constitutions

Answer 17

• all laws of the constitution can be amended by the ordinary law-making process.
• allows any of the rules of the constitution to be modified through the simple procedure by which the ordinary statutes were enacted.

UK’s constitution is flexible due to its constitutional institutions and rules which can be abrogated and modified through a simple act of Parliament.

Question 18

Federal constitution

Answer 18

• provides the ability to create governments at the state level.
• governments are able to have their own constitutions; connected and controlled by the central/federal constitution.
• alteration of the distribution of powers between the federal and state organs can only be achieved by amending the constitution (not a simple act of Parliament.)
• Individual states cannot have their powers reduced in that way.

Question 19

Unitary constitution

Answer 19

• All state power is vested by the constitution in central organs.
• The only level of government besides the central is the local or municipal government.
• Local governments may enjoy considerable autonomy, their powers are not accorded constitutional status.
• Parliament at the Central level could, by a simple Act of Parliament, reduce the powers of, or even abolish these local authorities.

Question 20

Differences between a federal and unitary constitution

Answer 20

Most countries have at least two levels of government: central and local. Some countries may contain a third level of government (responsible for the interests of more or less large regions)

• the distribution of powers between these levels of government is an important aspect of the constitutional organization of a state.
• states with two levels of government; distinctions made on the greater or lesser autonomy granted to the local level.
• a unitary or a federal system is dependent on how a constitution organizes power between the central and subnational governments.
• other than levels, the most important distinction between the two systems is that states or provinces of a federal state have constitutionally protected sovereignty.
• the state or provincial governments in a federal system share sovereignty with the central government and have final jurisdiction over a broad range of policy areas.

Question 21

Differences between a monarchy and republic constitution

Answer 21

Monarchy - one of the various types of constitutions that provide no head of the state power to citizens of a country; unless related to a monarch.
- May proclaim an endless political power to a monarch or limit his/her political power.

Republican - most popular constitution today.

• Proclaims rights and freedoms for all citizens.
• Provides the ability to choose political leaders or be chosen as political leaders

Question 22

Differences between a presidential and parliamentary constitution

Answer 22

Presidential - places power in the hands of a president.
- Usually dictates that the head of the state and the head of the executive branch is the president.

Parliamentary - gives power to a parliament.

• Primarily affect the head of the executive and the head of state branches.
• Dictates that the head of the state can be a prime minister. He/she can also be a part of a political party.

Question 23

What are secondary sources of law and how are they important?

Answer 23

• Plain language writings about the primary sources of law; great place to start research on any legal topic.
• Not law and not binding to any legal court.
• Organize and explain the primary law to make it more accessible and understandable
• Repackage primary information into a more digestible form providing commentary, analysis and debate around the law.
• Not inferior to primary sources but rather complement them.

Question 24

What are some examples of the secondary sources of law?

Answer 24

• > Textbooks
• > Legal Encylopaedias
• > Law dictionaries
• > Journals and articles

Question 25

What is constitutional supremacy and what is its significance?

Answer 25

• Refers to the position of the Constitution having the superior or greatest power/authority.
• Any law inconsistent with the constitution, such as contravening law will be null and void.
• Every person, citizen or government officials, is bound by the provisions of the constitution.
• Denotes that all three organs of government cannot act beyond the provisions of the Constitution.
• Any action that contravenes the Constitution shall be declared as “ultra vires” (beyond the power).

Question 26

Supremacy of the Constitution - Article 4(1)

Answer 26

• FC is the supreme law of the federation, fundamental law of the land - kind of a higher law used as a yardstick with which to measure the validity of all other laws.
• Any law inconsistent with the FC may be challenged in court and thus declared null and void.
• FC is regarded as a ‘higher’ law, against which the validity of other laws is tested.

Question 27

Constitutional supremacy v Parliamentary supremacy

Answer 27

Parliamentary supremacy - a principle that makes parliament the supreme legal authority, and has absolute sovereignty, and is supreme over all other government institutions, including executive and judicial bodies.

Constitutional supremacy - means the Constitution is supreme and all other bodies are subject to the constitution, including the executive and judiciary.
-> Suffian LP in Ah Thian v Government of Malaysia (1976) 2 MLJ 112;
“The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of the Parliament and of State Legislature in Malaysia is limited in the Constitution, and they cannot make law as they please.”

Question 28

Article 4(1) and the Post and Pre Merdeka Laws

Answer 28

Article 4(1) - concept of constitutional supremacy is manifested in Malaysia here. 
- “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

Question 29

What happens if the law inconsistent with the FC is a Post Merdeka law?

Answer 29

Post-Merdeka law - if it is inconsistent with the FC; will be declared null and void. (ultra vires)

Question 30

What happens if the law inconsistent with the FC is a Pre Merdeka law?

Answer 30

Pre Merdeka law - if it is inconsistent with the FC, shall be continued and applied with the necessary modification made by the judges.

Question 31

How can the federal constitution which is the supreme law of the federation, be amended?

Answer 31

• Judiciary has held that the word LAW in Art. 4(1) means only ordinary law enacted by the Parliament and excludes laws to amend the constitution enacted under Art. 159.
• Only the former (ordinary law) must accord with the FC, but the latter (law intended to amend the FC) need not; otherwise “no change whatsoever may be made to the Constitution.” (per Suffian LP in Phang Ching Hock v Public Prosecutor. (1980) I MLJ 70,72 (FC)
• Amending legislation is valid, even if inconsistent with the FC, so long as it complies with the procedures set out in Article 159.
• Supremacy of the constitution is maintained by giving to the court the right to review legislative and executive acts.
• And when the legislative or executive action violates the constitution, the court may declare it ultra vires and void.