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Dual system of laws: Natural law believes in a dual system of laws - a human-made system
of positive laws and a system of higher, “natural law” derived from a “superior” source.
Malaysia too has a dual system of laws but the “higher law” in Malaysia is a human-made
supreme Constitution. The Constitution is man-made and is not derived from a divine or
transcendental source. The supremacy of the Constitution over religious or natural laws is
clearly evidenced by Che Omar Che Soh v PP (1988) which ruled that Islam is the religion of
the Federation but is NOT the litmus test of legality and applies only in areas permitted by
Schedule 9 List 2 Item 1.
Non-application of lex injusta non est lex: In classical theories of natural law, unjust laws
(or “lawless laws”) are not laws. Lex injusta non est lex. The criterion for a law’s validity is a
moral criterion.
The Malaysian approach, on the other hand, is generally very positivistic. It is closer to
gesetz als gesetz (law is law). A law is valid as long as it was passed by the proper authority
in the proper manner and satisfies the requirement of constitutionality. Its justice or
harshness are not relevant. Thus, challenges to the constitutionality of death penalty or
mandatory death sentence laws on the ground that they are harsh, cruel and oppressive
have consistently failed in the courts: Che Ani Itam (1984), Lau Kee Hoo (1984), PP v Yee
Kim Seng (1983). “Whether or not the death penalty is morally right or wrong is a matter
not for the courts but for Parliament to decide”.
The word ‘law’ in Article 5(1) and 13(1) refers to lex, not jus and recht: Comptroller General
of Inland Revenue (1973) and Nallakaruppan (1999). The non-inclusion of the American
“due process clause” (5th and 14th Amendments) implies that as in England, the Malaysian
Parliament is absolutely free to determine how far the rights of an individual should go and
how they should be curtailed in the collective interest or for the security or economic life of
the state. Loh Kooi Choon v Govt [1977] 2 MLJ 187) implied that within its remit, Parliament
can enact any law whatsoever.
However, this approach has now been repudiated in such cases as Semenyih Jaya (2018)
and Indira Gandhi a/p Mutho (2019). See below.
Reasonableness and proportionality: In recent years the idea that the word “law” in
Articles 5 and 10 refers to any law whatsoever, no matter how unjust, unreasonable or
disproportionate, has been rejected. Legislation under Art 5(1) must be reasonable and
proportionate. The restrictions under Art 10(2) must, likewise, be reasonable or
proportionate: Sivarasa Rasiah v Badan Peguam [2012] 6 MLRA 375. A stirring affirmation
of this “natural law” point of view was evidenced in Alma Nudo Atenza v PP [2019] MLRAU
118 in which s 37 A of the Dangerous Drugs Act 1952 was declared disproportionate and
therefore unconstitutional because it contained a double presumption of criminal guilt.
This is in line with the modern naturalist approach, as exemplified by Prof Ronald Dworkin,
that in a developed and functioning electoral democracy, justice and morality are vital
components of the law, though not the criterion of validity. At the of time of its enactment, a
law can be moral, immoral or amoral. But at the interpretation stage, the judge is entitled to
construct the law in the light of transcendental values and to shade in moral colours to the
legal canvas. This is because “law” consists of (i) formal rules plus (ii) non-rule standards.
Ronald Dworkin rejected the belief of legal positivists that law consists merely of rules
decreed by named institutions. “The formalism inherent in legal positivism compels the
courts to enforce justice of a procedural character, preventing them from administering a
richer, substantive justice.” 1 Dworkin’s theory defines law holistically to include rules as
well as “non-rule standards” (i.e. principles, presumptions and a dimension of morality). On
issues of human rights, judges are entitled to go beyond posited rules to principles and
background standards.2
Judicial review of subsidiary legislation: Delegated legislation can be held ultra vires if it
is “unreasonable”: McEldowney v Forde [1969] 2 AllER 1039; Re Lee Yew Seng [1960] MLJ
37.
Unreasonableness is an indirect acceptance of moral standards.
The inclusion of common law as part of our law, permits Malaysian judges to read
formal rules in the light of unwritten, but deeply felt, values and assumptions of our
common law system.
The Interpretation Acts permits judges to go beyond literal language to examine the
purpose behind the law.
The Civil law Act permits judges to adopt English precedents at cut-off dates.
The Court of Judicature Act permits judges to award remedies beyond what the law
enumerates.
We have many decided cases in our legal system which articulate the view that law is
not a heathen word for power or a great, mysterious, malevolent engine of wrath. The
concept of law must include elements of reasonableness and proportionality e.g.
Sivarasa Rasiah v Badan Peguam [2006] 1 MLJ 727. A criminal statute like the Sedition
Act which contains no requirement of mens rea, may be disproportionate and illegal.
In addition to common law rules like natural justice, there are background values,
standards, doctrines, principles and presumptions (like the presumption of innocence)
that can come under the words “law includes” in Article 160(2) of the FC. What these
background values and standards are is a matter of conjecture, but scholarly literature
exists to inform us that some essential human values particularly relevant to public law
are: a rejection of unfairness; an insistence on essential equality; respect for the
integrity and dignity of the individual; and mercy.3
The result of all the above points is that legislation like the Peaceful Assemblies Act, Penal
Code, SOSMA, POTA, POCA and the Dangerous Drugs Act, which deprive individuals of their
personal liberties, must not be read in isolation but in the context of principles of common
law and customs (to the extent recognized). In addition, a Malaysian judge is entitled to
look at the totality of laws, institutions, moral standards and goals of our society. He/she is
3Refer to CJ Allsop A. O., “Values in Law: How They Influence and Shape Rules and the
Application of Law”, 2016 Hochelaga Lecture, Centre for Comparative and Public Law,
Faculty of Law, University of Hong Kong (2016).
entitled to presume that the entitlements of a citizen are to be derived from a seamless web
of principles and doctrines operating in our legal order which is founded on a democratic
system and a fair and just system of laws.
Human rights: Natural law believes in inalienable human rights. The Malaysian
Constitution incorporates human rights in a chapter called Fundamental Liberties. This is a
tribute to natural law’s insistence on human dignity. The chapter “posits” human rights.
The above survey indicates that the human rights picture in Malaysia is mixed. The
Constitution guarantees human rights but does not entrench them against legislative
power. Human rights can be violated in many ways:
Holistic and creative judicial interpretation: Natural law calls on judges to interpret law
creatively, holistically and morally in order to achieve justice. Malaysian courts are
generally inclined towards a strict constructionist approach to statutory interpretation.
The Dworkinian, morally charged interpretation of law is rarely resorted to. But there are
occasional exceptions e.g. the CA decision in Adorna Properties. Now and then
constitutional provisions on human rights are interpreted “prismatically”.
Stare decisis: Natural law emphasises justice over strict adherence to the law. It rejects
stare decisis. In Malaysia we accept stare decisis.
Law reform: Natural law supports vigorous legislative activity to bring reform. In Malaysia
there is no formal body like a Law Reform Commission that is charged with the
responsibility of proposing law reform. The other technique for law reform (the judicial
technique) is underutilized because of judicial conservatism.
Moral content of laws: At a thousand and one points law and morality intersect. Many
fields of law like equity, trusts, torts, contract, public law, family law, and criminal law
permit, indeed require, the judiciary to supplement the written law with equity, justice,
reasonableness fairness and proportionality. The notions of conscience or
unconscionability and good faith pervade equity and private law. Ninety per cent of equity
is a judicial gloss on the formal law inspired by considerations of fairness, justice and
morality.
In the areas of criminal law, law of trust, law of contract and family law there are many
meeting points between law and morality.
In many other indirect ways natural law influences the legal system. The concept of
natural justice, equitable estoppel, the principle of reasonableness, doctrine of unjust
enrichment and quasi-contractual obligations are all inspired by natural law.
The legal system’s support for the rule of law and due process, natural justice, and an
official religion (Islam) is consistent with natural law thinking that human laws need
external moral standards.
Delegated legislation can be held ultra vires if it is unreasonable. Unreasonableness is
an indirect acceptance of moral standards.
Our legal system is wedded to the rule of law: Ours is a democratic legal system wedded
to the rule of law. The existence of a supreme Constitution, a chapter on fundamental
liberties, safeguards for judicial independence and the explicit provisions for judicial
review of legislative and executive actions point to a system of rule of law. Our Rukun
Negara too recognizes the rule of law as the cornerstone of our legal system.
The rule of law is not a mere procedural concept but has a substantive content: The
rule of law requires that all government action must be founded on pre-existing laws.
There must be “supremacy of law” as opposed to rule of arbitrary power. However, the
notion of “supremacy of law” refers to compliance with both enacted and unenacted law.
(Report of the Committee on Ministers’ Powers, Cmd 4060, 1932, pp. 71-72. Michael Allen
& Brian Thompson, Cases & Materials on Constitutional and Administrative Law, OUP, 2008,
157). As was ruled by the Privy Council in the Singapore case of Ong Ah Chuan v PP [1981]
1 MLJ 64, 71, ‘law’ in the context of a Westminster democracy included elements of natural
justice. Their Lordships held that references to ‘law’ refer to a justice that had formed part
and parcel of the common law of England that was in operation when Singapore gained
independence. The Board rejected the argument that ‘law’ was satisfied by any Act passed
by the Parliament, however arbitrary or contrary to fundamental rules of natural justice.
The position is the same in Malaysia.
Further, rule of law must be distinguished from rule by law. Legality or compliance with
the law, though necessary, is not sufficient to produce a system of rule of law. Legality must
be accompanied by “just legality” i.e. respect for human rights and a just, substantive
content to all laws. The distinction between rule of law and rule by law implies that the law
must have a just substantive content. The laws that reign supreme must be just and fair
both substantively and procedurally.
Looking at the Malaysian Constitution and the legal system as a whole and viewing the
concept of law holistically, it is clear that the aim of our legal order was a democratic
government under a fair and just system of laws. Our Parliament is not supreme. There are
substantive as well as procedural limits on its powers. The concept of ‘law’ in our
Constitution, especially Articles 5, 8, 10, 13 and 160(2), does not envisage a law that is
unjust, arbitrary, unreasonable, oppressive or disproportional.
Constitutional amendment: Even a constitutional amendment can be held to be
unconstitutional on the ground of procedural violation: Robert Linggi v Govt [2011].
Parliament can be prevented by the courts from destroying the “basic structure” of the
Constitution: Sivarasa Rasiah [2010] 2 MLJ 333; PP v Gan Boon Aun [2012] MLJU 1225; Nik
Noorhafizi Nik Ibrahim [2013] 6 MLJ 660; Semenyih Jaya v Pentadbir Tanah [2017] 3 MLJ
561; Indira Gandhi a/p Mutho [2018]. What is significant is that the “basic structure” is not
clearly explicated anywhere in the Constitution. It is a mere constitutional doctrine that has
taken roots in some countries like India, Bangla Desh and lately in Malaysia. What this
doctrine signifies is that a parliamentary enactment is open to scrutiny not only for clear-
cut violation of the Constitution but also for violation of the doctrines or principles that
constitute the constitutional foundation. In a country with a supreme Constitution and
receptivity to the basic structure doctrine, it is impossible to argue that “law” in Article 5(1)
is whatever Parliament conceives it to be. There will be consistency in principle if we leave
the door open for judicial review whenever a parliamentary law under Article 5(1) is
unreasonable, harsh, oppressive, in breach of natural justice or in clear bad faith.
Other constitutional systems also support a broad and holistic concept of “law”
In the Singapore case of Ong Ah Chuan v PP [1981] 1 MLJ 64, 71, the PC ruled that law in the
context of a Westminster democracy included elements of natural justice. Their Lordships
held that references to ‘law’ refer to a justice that had formed part and parcel of the
common law of England that was in operation when Singapore gained independence. The
Board rejected the argument that ‘law’ was satisfied by any Act passed by the Parliament,
however arbitrary or contrary to fundamental rules of natural justice.4 In Tan Eng Hong v
AG [2013] SGHC 199 the Singapore court went on to say that a reference to “law” in
(Singapore’s) Art 9(1) had to include a reference to the fundamental rules of natural justice.
A law would be contrary to the equality clause if it violated the fundamental rules of
natural justice. Likewise, a legislative provision would be questionable if it was directed at
securing the conviction of particular persons, or if the provisions were absurd or arbitrary
and could not be justified by Art 9(1).
In Australia, in Kable v DPP (NSW) [1996] HCA 2; 189 CLR, the High Court of Australia was
faced with an Act of the State Parliament that purported to permit pre-emptive
imprisonment. Mr Kable had been convicted of a violent crime: the manslaughter of his
wife. As he approached the end of his sentence, he sent letters from prison to individuals
that caused it to be thought that, upon release, he might well commit further violent crimes
against those individuals. An Act of the New South Wales Parliament was passed that
provided for his continued detention by order of the Supreme Court upon satisfaction of
certain conditions (not being conviction of any crime). The constitutional challenge
succeeded. In Members of the Executive Council; for Education in Gauteng Province v
Governing Body of the Rivonia Primary School 2013 SACLR LEXIS 112 the issuing of
legitimate instructions within jurisdiction must, nevertheless, be done in a procedurally
fair manner. A power that was exercised in good faith but without proper procedures was
invalidated.
The Supreme Court Act 1981, s 49 (UK) permits full effect to be given to all equitable rights
in all branches of the Supreme Court and in inferior courts.
4Despite this scintillating reasoning, the challenges to harsh legal provisions failed in Haw
Tua
In the French Constitutional Council, reasonableness is a test for judicial review of
legislation.5 In England where Parliament is supreme, courts have occasionally opined that
“the law of England will not sanction what is inconsistent with humanity”: Best J in Illot v
Wilkes (1820), 3B & A 304 at 319.
In Kauesa v Minister of Home Affairs (1994) 2 LRC 263 [Namibia] restrictions on free
speech were challenged as unreasonable and therefore unconstitutional but were held to
be reasonably justifiable.
In Kansas, Petitioner v Leroy Hendricks 521 US346 (1997) the civil commitment of a
sexually violent predator was not violative of the Constitution’s double jeopardy or ex post
facto clauses. The significant issue was that the constitutional article on liberty was read in
the light of other articles.
Conclusion
The Malaysian legal system is primarily positivistic. But there are many features which
harmonise with natural law thinking. It is hoped that that “natural law features” may
enhance over the years.
I am persuaded by Australian CJ Allsop that law is not just command. Law is not built and
defined solely by rule making, by formulae or by inexorable command, but rather it is
organised around, and derived from, inhering human values. It attracts loyalty and consent
through its utility and practicality and through its characteristics of certainty, fairness and
justice. Any system of law worthy of being called just must be founded on fundamental
values. Assessing how power should be controlled and exercised in society (within both
private and public law) is the daily task of judges.6
In interpreting the Constitution, there must be place for unwritten values, principles as
well as formal rules. A constitutional text must be read and understood by reference to the
organised values that surround it, and to the purposes and aims of the text in the social and
political milieu of its creation, including a consideration of how people should be treated in
the exercise of power in a just and decent society.7