"The claim that civil law system is being practiced in some of the South East Asian States is rather an exaggeration, and in fact a misconception. The truth of the matter is that apart from the fact that some of the major areas of law in these States are codified, nothing else resembles the system as found either in France or in Germany."
The Civil Law system is said to be practiced in many countries in the world. However, there is a claim that the practice of this system in some of the South East Asian states is rather an exaggeration. It is said that there is nothing else that resembles the system as found either in France or Germany apart from the fact that some of the major areas of law in these states are codified.
The meaning of Civil Law is the entire system of law that currently applies to most Western European countries, Latin America, countries of the Near East, large parts of Africa, Indonesia and Japan. It is derived from ancient Roman law, and originated in Europe on the basis of the Roman jus civile, which is the private law that was applicable to the citizen and between citizens within the boundaries of a State in a domestic context. It was also called the jus quiritum, as opposed to the jus gentium, which is the law applied internationally, that is between States.
There are many features of Civil Law system. The first feature is the creation of doctrine of binding precedent. The authority of binding precedent is attributed in Federal Germany to the decisions of the Federal Constitutional Court the decisions of which for this reason are published in the official Federal Journal (Bundesgesetzblatt). In contrast, the doctrine in the French Legal System is not a binding authority on the courts, or a binding guide to the decision.
This is because the doctrine places court decisions in their proper perspective and indicates the policies underlying legislation. This means it has merely persuasive authority. Per se judicial decisions are not binding. However, they have de facto authority.
The second feature is codification. In Civil Law system, code is an authoritative, comprehensive and systematic collection of general clauses and legal principles, divided into Books or Parts dealing in a logical fashion with the law relating thereto. Civil codes are thereto regarded as the primary sources of law to which other sources are subordinate and often the only source of law on a particular matter. However, the codification movement was not wholly beneficial even with respect to the cohesion of the system. The "perfection of reason" achieved in the form of the civil codes of France (1804) and Germany (1896).
Next, the third feature is the doctrine of legal writing, the styles of doctrinal writing in France and Germany are, it would seem, more approximate now than at one time. The annotated codes (Kommentare) are now more often discursive and critical in approach, and German manuals or treaties (Lehrbucher) deal more with decided cases and aspects of actual practice than they once did.
The fourth feature is the court system. The Civil Law system has separate court system to trial different types of cases. The German Civil System has Ordentliche Gerichtsbarkeit (court with ordinary jurisdiction), Arbeitgerichtsbarkeit (employment law jurisdiction), Sozialgerichtsbarkeit (social jurisdiction), Finanzgerichtsbarkeit (fiscal jurisdiction), Verwaltungsgerictsbarkeit (administrative jurisdiction) and the Verfassungsgerichtsbarkeit, dealing with constitutional cases. The French Courts are organized on the basis of general and limited jurisdiction. The system has a dual court system. There are ordinary courts (the ordre judiciaire) and administrative courts (ordre administrative). The Supreme Administrative Court, known as the Conseil d’Etat. However, the Administrative Court more likely to belong to the executive, and it is only the ordinary court that can really be regarded as having its judicial functions, its autorite judiciare- the judicial power.
The hierarchy of courts is divided in a three- tier level, where in the lower tier, there is tribunaux d’instance, and also tribunaux de commerce. Together with the two courts are tribunals; those are social security tribunals, employment tribunals, and Landlord and tenant tribunals. In the second tier level, is the tribunaux de grande instance, which can try both civil and criminal matters, do not have any appellate jurisdiction, and functions as a regional court. Finally, at the top of the hierarchy is the cour d’appel, which hear appeal cases. The cour d’appel is divided into several divisions and do not simply try any kind of cases.
Eventually, the final feature is the difference between public and private law. In the French Civil system, the establishment of the courts, which governed the private and public matters distinctively, noted as a different feature as compared to the English Common Law. Those courts are Supreme Court, (cour de’cassation) which deal with private law (droit prive); while the Conseil d'Etat handle concerns about the public law (droit public). The droit prive handle private matters, the rights and duties of private persons. Public law on the other hand, would govern disputes involving States as one of the parties.
After identifying all the features of Civil Law system, we will then compare Indonesia, Thailand and Philippines to all those features mentioned. First, let's take a look at Indonesia law system. The main and most important source of the Indonesian National Law is the philosophy of Pancasila, as contained in the Preamble to the 1945 Constitution. Pancasila consists of five main principles, which are belief in the one supreme God, humanity, national unity, deliberations (musyawarah) towards consensus (mufakat) or democracy, and social justice. The Pancasila is regarded as the grundnorm or rechtsidee of the Indonesian Law, so that any law or regulation is expected to conform to this philosophy in its details. The policy of 'partial' codification has been developed, meaning that specific parts of the Civil or Commercial Courts are promulgated separately from time to time, as was the case with the new Company Law. A special body was established with the task of legal reform.
This body, named the Lembaga Pembinaan Hukum Nasional (or Institute for the Development of the National Law) was placed under the authority of the Prime Minister and consisted of representatives of political parties and law professors. Moreover, the Civil Code comprise of systematic laws, whereby the contract law is part of the Civil Court.
The structure of the Indonesian Courts is the general court is executed by the District Court (Pengadilan Negeri) and High Court (Pengadilan Tinggi) at the summit at the juridical system is the Supreme Court, the country’s highest juridical body. The judges and those involved in the lawsuit have direct contact with each other. In addition, Indonesia does not have binding precedents doctrine as in Malaysia.
Next, we will look into the country of Thailand. The sources of law are Code of Manu (Dharmasastera), which is the ancient Hindu Jurisprudence and Dhammasattham, which is the fundamental law of individual liberty and private rights dealing with both civil and criminal matters. The court system in Thailand commonly known as the 'Law of the three Great Seals', was more restatement of the prevailing Penal and Civil Law. It contained not only the Dhammasattham but also the existing royal decrees and edicts. In 1891, the Ministry of Justice controlled the courts. The Courts of Justice are divided into three-tiers, namely the Courts of First Instance that are divided into Courts of First Instance in Bangkok Metropolis and the Courts of First Instance in the province. Next are the Court of Appeal and the Regional Court of Appeal and the highest Court of Justice is the Supreme Court.
Finally, we will take a look in the Philippines law system. The main sources of Philippines law are the Constitution, statutes, treaties and conventions, and judicial decisions. The Constitution is the fundamental law of the land and as such, it is authority of the highest order against which no other authority can prevail. In addition, Philippines law is also derived from cases because the Civil Court provides that 'judicial decisions applying to or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Only decisions of its Supreme Court established jurisprudence and are binding on all other courts. The judge may still apply the customs of the place or, in its default, the general principles of law in the absence of any statutes governing the point in controversy. The Civil Court also provides that 'customs which are contrary to law, public order or public policy shall not be countenanced', and 'a custom must be proved as a fact according to the rules of the evidence'. Thus, Philippines law takes cognizance of customs, which may be considered, as supplementary sources of the law.
The five principles in the Constitution, which are regarded as the New Charter is described as 'pro-life, pro-people, pro-poor, pro-Filipino and anti-dictatorship'. There is a formal separation of powers between legislative, executive and judiciary. The judicial system of the Philippines consists of a hierarchy of courts with the Supreme Court at the apex. Under the Judicial Reorganization Act, the other courts are one Court Of Appeals; Regional Trial Courts divided into 13 judicial regions, composing a total of 950 branches; and 82 Metropolitan Trial Courts, 124 Municipal Trial Courts in Cities and 438 Municipal Trial Courts and 480 Municipal Circuit Trial Courts.
For Muslims, there are 51 shari'a circuit and 5 shari'a district courts. Aside form these tribunals, there are Special Courts, namely, the Court of Tax Appeals and the Sandiganbayan. The highest court in the judicial system of the Philippines is the Supreme Court. The cases that are heard and decided by the Supreme Court en banc are those involving the constitutionality of a treaty, executive agreement or law. Law doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
The Civil Code was drafted by a Code Commission and came into effect on 1 July 1950, replacing the Spanish Civil Court 1889. It includes new rules aimed at incorporating Filipino customs and new rights in courses of action such as civil actions for obstruction on civil liberty, moral and nominal damages. There are 27 Codes in force in the Philippines.
As a conclusion, there are some of the features in the Civil Law system of Germany and France, which can be found in the South East Asian States that include Indonesia, Thailand and Philippines. Therefore, we cannot say it as merely an exaggeration and misconception.
Karim, a 17 year-old student from College Paladium Shah alam was browsing the internet with his friend, Awang in Buang Masa Cybercafe when he saw a site, run by Rekod Labu Labi Sdn Bhd, which was offering a set of CDs of the complete P.Ramlee's last concert at a price of RM100. in compliance with the information on the set, Karim immediately sent an e-mail to Rekod Labu Labi ordering a set of the CDs, and giving his credit card details.
About 5 minutes later, Awang found another site run by Saloma Moden Sdn. Bhd a rival company of Rekod LAbu Labi offering the same set of CDs for RM75. Karim immediately moved to Saloma Moden's website and selected this set.He was asked to fill out a form giving his details of his orders and requiring him to click on the confirmation order icon if he wishes to purchase the item. Karim did so. He then immediately sent second email to Rekod Labu Labi canceling his previous order. 10 minutes later he received an e-mail, from Rekod Labu Labi in response to his original email informing him that his order had been accepted and was being processed.
Karim was also interested in purchasing a mobile hand phone through email order. He browsed the internet on email order and saw the site run by Global Mobile Company offering cheap mobile hand phones at RM300 each for students. He immediately made the order and filled out the form as required in the email. A few minutes later Karim received an email form Global Company confirming their acceptance of Karim's order.
The next day Karim received an email from Saloma Moden explaining that the price of RM75 was wrongly quoted and that the real price was RM150. Subsequently he received a further email from Rekod Labu Labi stating that his second email had come too late and that he will charge with RM 100. Karim wishes to hold Saloma Moden to the price stated on the website and does not wish to proceed with the transaction with Rekod Labu Labi. Karim also wishes to return the mobile hand phone to Global Company when he found out the heavy maintenance fees of the phone.
Advise Karim
ANSWER:
Based on the facts given in the question above, we can highlight some main issues in order to advise Karim. Firstly the issues are whether there are legally agreement between Karim and Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd, Global Mobile Company. Secondly, whether Karim can hold Saloma Moden Sdn Bhd to the price stated on website, whether revocation of offer by Karim to Labu Labi Sdn Bhd will take effective or not and lastly whether Karim can get back his money by return back the mobile phone that he had brought from Global Mobile Company.
A contract maybe defines as an agreement between two or more parties that is intended to be legally binding. The first requisite of any contract is an agreement consisting of an offer and acceptance. At least two parties are required. One of them, the offeror which makes an offer and the other is offeree which accepts the offer. According to sec 2a of Contract Act 1950, an offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.
A genuine offer is different from what is known as "invitation to treat" where a party is merely inviting offers which is then free to accept or reject. Invitation to treat also can be define as invitation to enter into negotiation. There are differences between offer and invitation to treat. When offer is made by a party, he intend and legally bound by his offer but when the invitation to treat is made by a party, he does not intend and legally bound by his invitation to treat. Thus, the acceptance of an offer can form a contract while acceptance of an invitation to treat does not result in contract.
Based on the fact of the question, Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and Global Mobile Company had advertised their product in the internet. Advertisements of goods for sale are normally interpreted as invitation to treat. This was illustrated in the case of Partriedge v Crittenden where the appellant inserted an advertisement in a periodical a notice "bramblefinch cocks and hens 25s each". It appeared under general heading 'classified advertisement' and words offer for sale were not used. He was charged with unlawfully offering for sale a wildlife bird contrary to the provision of the Protection of Birds Act 1954.It was held that there had been no offer for sale. When one is dealing with advertisement and circulars, there is business sense in their being construct as invitation to treat.
So, Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and Global Mobile Company advertise their goods in order to invite buyers to enter into negotiation or make an offer to them. The acceptance of invitation to treat is when Karim submit an orders to buy CD from Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and mobile phone from Global Mobile Company. At this moment also, Karim is said to make an offer to them.
An acceptance is a final and unqualified acceptance of the terms of an offer. To make a binding contract, the acceptance must exactly match the offer. The offeree must accept all the terms of the offer. According to section 2 (b) of Contract Act 1950, when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted become a promise. In section 3 of the same act stated that the communication of offer, acceptance of an offer and revocation of offer or acceptance are deemed to be made by any act of party offering, accepting and revoking by which he intends to communicate the offer, acceptance or revocation or which has the effect of communicating it. And based on section 7 (a) same act the acceptance must be absolute and unqualified. Acceptance must be communicated. Communications of an acceptance take place when it is brought to the knowledge of offeror. Refer to the question, the email by internet services is practically an instantaneous means of communication. It enables a massage to be dispatch by an email operated like a typewriter in one country and almost instantaneously received and type in another.
In the case of Entores Limited v Miles Far East Corporation, the plaintiffs in London made an offer to the defendants in Amsterdam. The defendants accepted by telex. The question was whether was the contract entered into in Amsterdam where the telex was sent or in London where it was received. Court of Appeal held that the contract was only complete when acceptance was received by the plaintiffs in London.
The first issues are whether there is a legally agreement between Karim and Saloma Moden Sdn Bhd and wheter Karim can hold Saloma Moden Sdn Bhd to the price stated on website. When Saloma Moden Sdn Bhd make an advertisement, they is said to make an invitation to treat. Karim accept the invitation to treat and make an offer by sent an order form through email to the company. The acceptance by Karim does not amount into contract. This is because when Saloma Moden Sdn Bhd make an invitation to treat, they does not intend and legally bound by their invitation to treat. Furthermore, in the question it is not stated that Saloma Moden Sdn Bhd had accept offer made by Karim to them.
So, since there is no acceptance at all, then there is no legal agreement between Saloma Moden Sdn Bhd and Karim. As the result of this, Saloma Moden Sdn Bhd can change the original price of the product and Karim can not hold Saloma Moden Sdn Bhd to the price stated on the website. However, if Saloma Moden Sdn Bhd had accept the offer made by Karim by reply their acceptance through email, then there is a legally contract between them and Saloma Moden Sdn Bhd can not change the original price that stated on the website. Same as Malaysian case of Coelho v Public Services Commission, where the respondent advertised in the Malay Mail inviting applications for the post of an Assistant Passport Officer. The applicant applied was subsequently accepted. Later, due to misconduct, the applicant was informed that his appointment on probation to be terminated. Judge Ong held that the advertisement was an invitation to treat and the resulting applications were offer. The respondent’s acceptance of the applicant’s application was unqualified and there was no question that his appointment was on probation. Therefore, the respondent was wrong in terminating his employment in the manner applicable to officers on probation.
The second issues are whether there are legally agreement between Karim and Rekod Labu Labi Sdn Bhd and, whether revocation of offer by Karim to Labu Labi Sdn Bhd will take effective or not. Here, when Karim made offer to buy CD form Labu Labi Sdn Bhd he is now known as offeror and the other party known as offeree. Same as in the case of Entores v Miles Far East, the question is when the acceptance was completed and where the contract was made between Karim and the company. The communication of acceptance was complete when it is brought to the knowledge of offeror (Karim) and the contract was made at the place where the acceptance was received. However, Karim had made a revocation to his offer 5 minutes after he offer to buy the CD. 10 minutes after he made the offer, he received an email from Labu Labi Sdn Bhd informing him that his order had been accepted.
Unfortunately, the next day he received a further email from Labu Labi Sdn Bhd stating that his second email which contains revocation of his offer had come too late. In this situation, the contract between these parties is made when Karim received an email from Labu Labi Sdn Bhd informing him that his order had been accepted. According to the section 4 (3) (b) of Contract Act 1950 the communication of a revocation is complete as against the person to whom it is made, when it comes to his knowledge. And by refer to section 5(1) of the same act stated that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. As in the case of Byrne v Van Tienhoven(1880) where on October1, the defendants posted a letter in Cardiff to the plaintiffs in New York offering to sell them tin plates. On October 8, the defendants revoked their offer by post. On October 11, the plaintiffs accepted the offer by telegraph, and confirm their acceptance by a letter dated October 15. on October 20, the plaintiff received the defendant’s letter of revocation. It was held that the revocation of the offer was not effective because it was only communicated on October 20, which was after the acceptance of the offer on October 11.
By apply the law into this circumstances, Karim's revocation of offer will not take effective at all. This is because the email consist of the revocation only come to the knowledge of Labu Labi Sdn Bhd after the acceptance had been made which means the revocation come to the knowledge of offeree afterwards the acceptance being made. Thus, there is a contract between them and since the revocation of offer is not effective then Karim was entitled to pay RM100 to Labu Labi Sdn Bhd. But if the email of revocation came before the acceptance of the offer being made, then Karim is not enforceable to pay RM100 as the revocation of offer will take effective.
The third issues are whether there are legally agreements between Karim and Global Mobile Company and whether he can get back his money by return back the mobile phone that he had brought from Global Mobile Company. According to the question, there is a contract between Karim and Global Mobile Company when Karim's offer had been accepted by Global Mobile Company and in fact Karim had received the mobile phone and had used it. So, Karim cannot return back the mobile hand phone to the company because he had entered into contract with the company and the contract between them is valid. The reason of heavy maintenance fees of the phone will not make their contract become void. Unless there are undue influence, coercion, mistake and misrepresentation then the contract is said to become void or viodable. It is up to the innocent party ( Karim) to continue the contract or not. Thus, Karim cannot return the phone and cannot get back his money.
However, in section 10 (1) of Contract Act 1950 said that all agreement are contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declare to be void.
Who are competent to contract? According to section 11 of the same act, every person is competent to contract who is of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. Further in section 2 of Age of Majority Act 1971 stated that a person of majority is 18 years old. Below 18 years old can be label as minor. In English Law, a minor does not have the full capacity to enter into contracts and the contract entered into by minor can be divided in to 3 part which are valid (where contract for necessaries), voidable and unenforceable (contract for luxury goods).
However this is different in the Indian case of Mohori Bibee v Dhurmodas Ghose (1903). In this case it was held that contract enter by minor is void. A minor cannot enter contract with adults. An infant would not be able to obtain any damages for breach of contract.
In Malaysia, the Mohari Bibee case was followed in the case of Tan Hee Juan v Teh Boon Kiat (1934). Plaintiff who is a minor said that contract that involved a minor is said to be void. So there is no contract at all. So it was held that the plaintiff succeeds in his claimed and therefore Tan Hee Juan should not have to pay back to the defendant.
Later, in 1950 Contract Act had been made and in the section 69 of the Act provides that if a person, incapable of entering contract or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitle to be reimbursed from property of such incapable person. But the word necessary is not defined in the Act. But later, in the case of Government of Malaysia v Gucharan Singh & Ors, Judge Chang Min Tat concluded the word necessaries must be construed broadly and in any decision involving whether what are supplied are or are not necessaries, it is incumbent to have regard to the facts of the case, the conditions and circumstances in which the supply was made and the purposed which is served. Thus an infant is totally incompetent and incapable of entering into contract and there is no contract on which he can be sued.
By applying the law into the question, it was stated that Karim is 17 years old and he is a minor. When Karim cannot enter contact of buying CDs from Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and mobile hand phone from Global Mobile Company because he is an infant or minor. As the result, if Karim enter into these contracts, those contracts will become void. The main question regarding this circumstance is whether what is supplied is a necessary to the infant's condition in life. Based on the facts in this case, CDs and mobile hand phone are not necessaries to the minor's condition in life.
So, the contract between Karim and Global Mobile Company is said to be void. When the contract between them in void, then Karim can return back the mobile hand phone and receive back his money. This is because under minor’s contract, the property transferred can be recovery. In section 66 of Contract Act 1950, when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it. This section had been used is the case of Leha bte v Awang Johari bin Hasim ( 1978) where it is the minor who has paid money in pursuance of a contract then it enables the minor to recover the money upon returning the property transferred to him. Apply to this condition, the Global Mobile Company have to give back money to Karim because the company had received advantages under the agreement.
Lastly, as the conclusion of the questions, there are contract between Karim and Rekod Labu Labi Sdn Bhd, Global Mobile Company but those contracts had become void as Karim is a minor. So, Rekod Labu Labi cannot enforce Karim to pay RM100 for the CD. As for Global Mobile Company, they are liable to give back Karim's money. Meanwhile, there is no contract between Karim and Saloma Moden Sdn Bhd. This is because there is no acceptance at all. So, Saloma Moden Sdn Bhd can change the original price and Karim cannot hold the company to the price stated on the website.
What Is Copyright? Copyright is the exclusive right given to the owner of a copyright for a specific period. Copyright protection in Malaysia is governed by the Copyright Act 1987. There is no system of registration for copyright in Malaysia. A work that is eligible is protected automatically
What Does Copyright Protect? Works eligible for protection are:
These works shall be protected irrespective of their quality and purpose for which they were created. However, the copyright protection shall only extend to expression and not ideas, procedures, methods of operation or mathematical concepts as such.
Who Owns Copyright? Copyrights in a work vests initially in the author (writer, composer, maker of the work, etc). However, where the making of a work is made by an employee in the course of his employment, unless there is any contrary agreement, the copyright in the work shall be deemed to vest in the person who commissioned the work or the employer. The author's right is transferable by assignment, testamentary disposition or by operation of law, in which case the assignee shall be the owner.
How long does copyright last? Literary, Musical or Artistic Works
Generally, copyright in any literary, musical or artistic work shall subsist during the life of the author plus 50 years after his death. However, if a work has not been published during the lifetime of the author, copyright in the work continues to subsist until the expiration of 50 years, following the year in which the work was first published. In the case of a work with joint authorship, the life of the author who dies last is used for the purpose of calculating the copyright duration of the work.
Sound Recordings
The copyright in sound recordings shall subsist until the expiry of a period of 50 years computed from the beginning of the calendar year next following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.
Broadcasts
For the copyright in broadcasts, the duration shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the broadcasts was first made.
Films
The duration of the copyright in films shall continue to subsist for a period of fifty years computed from the beginning of the calendar year next following the year in which the film was first published or first made available to the public or made, whichever is the last.
Government Works
Copyright in works of Government, Government organizations and international bodies shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the work was first published.
What Are The Legal Rights Of Copyright Owners? Generally, owners of copyright works in literary, musical or artistic works, films and sound recordings have the exclusive rights to control: i) the reproduction of the works in any form (including photocopying, recording etc); ii) the performing, showing or playing to the public; iii) the communication to the public; iv) the distribution of copies to the public by sale or other transfer of ownership; and v) the commercial rental to the public.
These exclusive rights apply irrespective of whether the works are copied partly or wholly. Thus, infringement of copyright occurs if the person claiming can show that the defendant has done such an act. In other words, the burden of proof lies on the person claiming that his/her work has been infringed.
Copyright in Broadcasts For the copyright in a broadcast, there shall be exclusive rights to control the recording, the reproduction, and the rebroadcasting of the whole or a substantial part of the broadcast. The show or the play must be made in public and in a place where an admission fee is charged for the whole or a substantial part of the broadcast either in its original form or in any way recognizably derived from the original. The copyright in a television broadcast shall include the right to control the taking of still photographs from such broadcasts.
Economic Rights Economic rights are exercised during the period of protection. These rights are exercised by the owners while alive, and upon death, for a period of 50 years by their heirs.
Moral Rights Besides the economic rights, copyright protection also includes moral rights. The moral rights are basically the rights to oppose changes in the copyright that could harm the reputation of the creator.
What Constitutes Copyright Infringement?
The copyright in a work infringed when a person who, not being owner of the copyright, and without license from the owner, violated the right.
What Is Copyright Tribunal?
The Malaysian Copyright Act provides for a Copyright Tribunal whose function is to grant licenses to produce and publish in the National Language a translation of a literary work written in any other language and arbitration of disputes relating to use of copyright works.
Snatch theft is becoming a serious issue nowadays. During the months of June and July 2004, the local media, especially the press, have been replete with reports of crime and violence in Malaysia. There have been many reports of snatch thefts which has given a great impact to the society. Police statistics on these crimes indicate that they are on the rise. Therefore, there is a sense of anxiety, even panic and fear in the air.
The seriousness of this crime can be proven when on January 29th, 2005, the Prime Minister, Datuk Seri Abdullah Ahmad Badawi himself has addressed throughout the country his curious concern on the rise of the crime and the need to implement more severe punishments. There are lots of articles in the newspapers and on the internet to show the seriousness of the offence of snatch theft. On January 30th 2005, our nation's leading newspapers, namely Berita Minggu and The Star had reported snatch theft crimes, which had happened near Ipoh, Perak. The suspect had snatched the bag from a sixty year old woman at a shopping mall at Jalan Kampar, as the woman was walking to her car. The twenty year old thief, who had tried to escape in his car, also knocked down a man, who suffered minor injuries. The suspect ran through the traffic lights and collided with two cars. This has caused him to lose control of his vehicle, which then hit the road sign. The suspect then was detained.
The second example of this snatch theft crime happened on January 9th 2005. Berita Minggu had reported another snatch theft incident, where two female students were injured after their motorcycle crashed into a concrete drain while escaping from a snatch criminal. The suspect had followed the girls with a motorcycle on their way after attending tuition class. In another case, on June 10th 2004, Ros Saliza Burhan, a factory worker on her way waiting for the bus was followed by two men on a motorcycle. Failed to snatch the victim’s bag, the criminal had used force against her by stabbing her three times so that she will release her bag. The victim fainted because of the injury.
Those were just among a few cases occur in our country. There are other cases, which cause a more terrifying result such as death, grievous hurt, shocked and so forth. The seriousness of this offence can be seen when Chin Wai Fong died in Brickfields in May when she fought back against a snatch thief. Then Chong Fee Cheng fell, went into a coma and died while resisting a snatch thief in Johor Baru in mid-June. This was followed by the killing of Rosli Mohamed Saad who had gone to the aid of an Indonesian woman whose bag was snatched in Ampang in June 29. The newspapers also carried statistics on the number of snatch thefts. Relying on police statistics, Penang Chief Minister Tan Sri Dr Koh Tsu Koon revealed that there had been a total of 515 cases of snatch thefts in Penang between January and May 2004. Meanwhile the Perak Chief Police Officer reported a total of 374 cases of snatch thefts in his state during January to May 2004.
With all the examples and discussions given, the issue of whether or not the crime of "snatch theft" should be separated from the offence of "theft" and "robbery" will impose a lot of legal discussion in order to ensure public safety. The main and crucial issue to be discussed here is that whether the offence of "theft" and "robbery" sufficiently address the offence of "snatch theft". In other words, whether or not the elements of the two offences, which are already in the Penal Code are sufficient to be raised for a person who commits snatch theft. In order to tackle this issue, the elements of "theft", which is under section 378 of the Penal Code and the elements of "robbery" which is under section 390 of the Penal Code have to be analyzed one by one. First and foremost, we would like to discuss the elements of "theft" which is under section 378 of the Penal Code. The said provision defines theft as "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft". Basically, from the definition, there are five elements of "theft".
The first element is dishonesty. It is defined under section 24 of the Penal Code as "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing "dishonestly"." This shows that the important thing is to determine whether or not there is an intention to cause wrongful gain or wrongful loss to the other person. What is "wrongful gain" and "wrongful loss" then? It is further defined in section 23 of the Penal Code, whereby a person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of the property. Since dishonesty requires the intention to wrongfully gain or lose, the intention must exist at the time of moving of the property. This is because, it is not theft if there is no intention at the time of taking of the property .
The authority for the first element can be seen in the case of Raja Mohamed v. R whereby the principle is that there must be an intention to take dishonestly any movable property out of the possession of another person without that person's consent in order to constitute theft. Meaning to say, it is sufficient that the person, who has such dishonest intention moves the property in order to such taking. In addition, it is not necessary to move such property in order to move out of the possession of the other person.
Next, the second element is that the person must take without consent. It means that there must be an intention to take another's property without consent. The important point here is how the accused conceives of the situation whether or not the person whose property is taken would consent to it. In other words, this element depends on the mind of the owner of the property. In the situation when a person consents, then the actus reus of theft is not fulfilled and therefore there is no theft.
The third element is to take out of possession. It means that the property must be taken or moved out of the possession. If the accused has a dishonest intention and moves the property, then he is said to move the property out of possession. It is to be noted here that theft is an offence against possession and not of ownership. Therefore, the offence is against the person who is in possession. A possession for the purpose of theft relates to movable property and movable property, which is lost or abandoned may not be in any possession of any person. However, when it is neither lost nor abandoned, even if it is then placed in the possession of someone else, the possession may still remain with the true owner.
Subsequently, the fourth element is movable property. What is "movable property" is defined under section 22 of the Penal Code, which states that the words "movable property" are intended to include corporeal property of every description. Except land and things attached to the earth, or permanently fastened to anything which is attached to the earth. It means that as long as the thing is attached to the earth, therefore it is not movable.
Furthermore, a thing attached to the earth is not movable and cannot be a subject of theft until it has been severed from the earth. Land within the meaning of section 22 of the Penal Code does not include soil from the land. However, when it is dug out of the land, it is then known as movable property. In the case of Lim Soon Gong & Ors., the respondents were charged with committing theft of sand from the foreshore. The principle of this case regarding the fourth element is that sand, which has been dug out from the foreshore is a movable property. Eventually, the final element of theft is there must be a moving of the property. It means that the property must be moved out of possession. This can be seen in the authority of Raja Mohamed v. R, the accused had removed boxes containing two dozens of glasses from the company's ground floor storeroom. He was charged of convicting theft. The principle of this case is that it is sufficient if the person had formed a dishonest intention and moves the property in order to such taking. Moreover, it is not necessary to move the property fully out of possession in order to commit theft.
Having fulfilled all the five elements under section 378 of the Penal Code, the accused then can be held liable for committing theft. Section 379 of the Penal Code further provides the punishment for theft, whereby one can be punished with imprisonment for a term which may extend to seven years or with fine or both. It further adds that for a second or subsequent offence, one shall be punished with imprisonment and also be liable to fine or whipping. The question to be asked is whether the offence of "snatch theft" can fall under the offence of "theft" under section 378 of the Penal Code. It seems like it is insufficient as when snatch theft is committed, there will be the element of force on the person who is being snatched, whereas the elements of theft are more mild in the sense that there is nothing in the provision states that there is a use of force or further may result to a more critical situation such as death. Thus, this will make the punishment for theft does not suit the offence of snatch theft. Snatch theft as being said earlier can cause injury to the other person and it can even come to the extent of causing death to the other person. Besides that, there also should be an element of force. These elements seem do not present in the elements of theft. Thus, we submit that the offence of "theft" does not sufficiently address the offence snatch theft as snatch theft is more serious and causes more severe injury as compared to theft.
Having discussed the elements of "theft", we will go into details the offence of "robbery" in order to come to the conclusion of whether or not it is sufficiently address the offence of snatch theft. Section 390 of the Penal Code which is regarding the offence of "robbery" will be analyzed. Clause (1) of the said provision states that in all robbery there is either theft or extortion. In other words, for the offence of robbery to arise, either the two main elements, which are theft or extortion has to exist.
Section 390(2) states that theft is "robbery" if, in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint. Section 390(3) defines extortion as robbery, if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
In other words, robbery is theft or extortion in an aggravated form. Hence, the elements of theft or extortion must be present in addition to the aggravated circumstances set out in robbery. Section 390 provides for the circumstances when theft constitutes robbery. The words "for that end" in section 390 must relate to the commission of theft. Hence where an assault has no relation to the theft, robbery is not committed. If, for example, the accused first assaulted the complainant and then subsequently formed an intention to take his watch, he cannot be liable for robbery but only for theft.
The crucial point under the offence of robbery is to determine the meaning of the word "for that end". The force or threat of force must be for the purpose of committing theft and carrying away the property. In Karuppa Gounden, it was held that "the word 'for that end' in section 390, Penal Code, cannot be read as meaning in those circumstances". It was held by the Lahore Court in Karmun that, "…before a person can be convicted of robbery the prosecution must prove that hurt was caused in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away the property obtained by the theft. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself..."
In the other case of Bishambhar Nath v. Emperor AIR, the principle is that in order to commit theft of the cash or in committing the theft of cash for carrying away or attempting to carry away property obtained by the theft, the accused for the theft voluntarily caused or attempted to cause hurt.
The word "for that end" clearly means that the hurt caused by the offender must be with the express object of facilitating the commission of theft or hurt must be caused while the offender was committing theft or in carrying away or in attempting to carry away the property obtained by the theft. It does not mean that the assault or hurt must be caused in the same transaction or in the same circumstances. In Nga Po Thet, the essence of robbery is that the offender must cause death, hurt or wrongful restraint or fear of death, hurt or wrongful restraint in the commission of theft or in carrying away the property obtained by theft. The punishment for robbery is stated in section 392 of the Penal Code, whereby it shall be punished for a term which may extend to ten years and shall be liable to fine. In addition, if the robbery is committed between sunset and sunrise, the imprisonment may be extended to fourteen years and shall also be liable to fine or whipping.
From the discussion of robbery as in section 390 of the Penal Code, the offence of robbery seems to satisfy some elements of snatch theft. As what has been said earlier, the offence of snatch theft involves the elements of force and the consequences of the act will lead to a severe injury to the victim and sometimes it may lead to death of the victim. In fact, section 390 is being used for the time being as to replace the offence of snatch theft which is not in the Penal Code yet. This shows that snatch theft is very dangerous to the public at large as the offence is nearly similar to the elements of the offence of robbery under section 390. The punishment for snatch theft is as the same as the punishment for robbery under section 392. This again proves that snatch theft is a serious crime.
However, we strongly think that there must be an element of force in snatch theft. This is because when a person snatches another person's handbag, there is an existence of force used against the other person. This is because, when a person wants to grab the other person's bag, it will happen fast. When this happens, the other person will be hurt and injured as there is force used against him or her. In other words, force and hurt will tend to exist simultaneously when a person commits the offence of snatch theft.
In the current situation, the Deputy Internal Security Affairs Minister Datuk Noh Omar has clarified in Parliament that the Police, since early 2004, had resorted to using the Emergency Ordinance (Crime Prevention & Public Safety) 1969 against snatch thieves "if the Police is convinced that the suspects had committed the offence". Under the Ordinance, those suspected may be held for sixty days after which the Internal Security Minister could decide to detain them for up to two years without trial. The Deputy Internal Security Affairs Minister further clarified that the Police would also charge snatch thieves under sections 392, 394 and 397 of the Penal Code, which allows for caning, jail terms (up to twenty years if armed, under section 394), apart from imposing fines. This last step is in line with the suggestions of another politician, Karpal Singh, who called for amendments to sections 392 and 394 of the Penal Code to impose mandatory whipping of not less than six strokes. It was also the suggestion of Wong Sulong in his Editorial in The Star on June 15th, 2004.
Since there is still no laws imposed on snatch theft, it is to be tabled in the year 2005. The Minister in the Prime Minister's Department, Datuk Mohd Radzi Sheikh Ahmad said a Bill dealing specifically with snatch theft offences would be tabled in Parliament in July, 2005. He added that, under the new law, the offenders could be imprisoned between seven and twenty years and whipping could be included as part of the punishment. Currently in the Penal Code, there is no special provision for snatch theft besides the separate charges for theft and robbery, which carry a maximum jail sentence of seven and twenty years respectively. He further added that the law would be effective by the end of the year 2005 if everything goes smoothly. The need of having a special law for snatch theft is due to the many reported cases of victims being killed or seriously injured. This shows that the offence of snatch theft is indeed a serious crime.
CONCLUSION The offence of "theft" and "robbery" do not sufficiently address the offence of "snatch theft". This is because only some of the elements of snatch theft matches the offence of theft and robbery. The public views snatch theft as being more dangerous than theft and robbery as it can happen anywhere at anytime. The victims are normally among the women as women carry handbags on their arms and this allows the other to snatch their bags easily with the use of force and violence against the women, which will lead to injury and to some extent cause death. Force is usually easily used by the men to the women as the women seldom fight back. Eventhough the elements of crime in "snatch theft" could be found in the offence of "theft" or "robbery" but the consequences of the crime are unpredictable. Some victims may have escaped without any injury but then they will suffer trauma, and some victims may have died because of the crime. Therefore, in order to provide sufficient punishment and to address the crime of "snatch theft", a specific provision in the Penal Code should be implemented to successfully overcome this problem. Consequently, we strongly agree that there should be a separate offence and punishment for snatch theft in the Penal Code so as to give more severe and reasonable punishment for the offence which had been done.
The success of our constitution in bringing about peace and stability despite the existence of three major races among its population is remarkable. This is due to a sensible and practical government that has been able to bring about increased prosperity and the genius of the people to tolerate the co-existence of different religions and languages, customs and cultures. Constitutional law deals with the foundations and bedrock of a particular country. The term 'constitution', in any country, basically refers to a set of rules which determines, among others, the manner the institution are to be set up, the powers to be distributed and the justice to be administered.
"The attempt to embody the fundamental institutions of a State in a single document or small groups of documents," says Lowell, "is rarely, if ever, successful; and even if the constitution when framed covers all the main principles on which the government is based, if often happens that they become modified in practice, fully with the actual government of the country." A constitution is "[a] charter of government deriving its whole authority from the governed" (Black's Law Dictionary). The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government. The classic liberalism posits that the state and society can be viewed as a big social contract. If so, in a liberal democratic country, the constitution is the fundamental part of the social contract; it is a fundamental contract between the state and the civil society. Bryce defines it as "the aggregate of laws and customs under which the life of the State goes on"; "or the complex totality of laws embodying the principles and rules whereby the community is organized, governed, and held together."
Gilchrist writes that the constitution consists of "that body of rules or laws written or unwritten, which determine the organization of government, the distribution of powers to the various organs of government, and the general principles on which these powers are to be exercised." 'Constitutionalism' – democratic government, the rule of the law, the separation of powers, and the observance of fundamental human rights and liberties. These concepts were enshrined in the Constitution of the Federation of Malaya in 1957, and still can be seen in the present Federal Constitution of Malaysia which has evolved over 46 years from that important document. Constitutionalism is comprised of ideas and theories that essentially put limitations on Political power in general.Government's sway over citizen's in particular.Montesquieu said that "there is no word that admits of more various significations, and has made more different impressions on the human mind than that of liberty."
Constitutionalism established substantive aspects of political liberalism such asSystems of rights designed to protect individuals against the state.The philosophy of limited government.The universal application of rules and so on. Two key elements of constitutionalismRights provision – safeguards for political rights, for example, freedom of speech.Structural provision – separation of power, representative system. Rousseau said, "What a man loses by the social contract is his natural liberty and an unlimited right to anything that tempts him, which he can obtain." Rights provision is to ensure limitation on dangers of democracy by expelling certain issues from the political agenda together. Meanwhile, structural provision is to limit potential threats to democracy through political process. M.P. Jain explained the distinction between constitution and constitutionalism. He put forward the view that a country may have a constitution but not necessarily constitutionalism. This is because, constitutionalism denotes a constitution not only of powers but of restraint as well, or simple in term, not only the engine but some brakes as well. Constitutionalism concepts: Doctrine of separation of power.Rule of law.Limited government.Check and balancesMore recent concepts:Good governance.Transparency.Accountability.Call for democracy and respect for human rights. Dicey defined Rule of Law:Supremacy of regular laws over arbitrary power.Former legal equality before the law.The constitution that is defined and enforced by regular courts. The emphasis of the contemporary writes is on constitutionalism rather than on constitution. This is made clear by Carter and Herz themselves. They say, "Genuine constitutionalism is likewise absent when constitutions are forever made and remade, changed and abolished so as to fit the political needs of the respective holders…"
Like liberty or democracy, "constitutionalism" is also a fuzzy word, and different people have different ideas about what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as constituting the following elements: 1. There is a higher law, either written or unwritten, called constitution; 2. There is judicial review; 3. There is an independent judiciary comprised of independent judges dedicated to legal reasoning; 4. Possibly, there is due process of law; and, most basically, 5. There is a binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law (Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.
Louis Henkin defines constitutionalism as constituting the following elements: 1. Government according to the constitution; 2. Separation of power; 3. Sovereignty of the people and democratic government; 4. Constitutional review; 5. Independent judiciary; 6. Limited government subject to a bill of individual rights; 7. Controlling the police; 8. Civilian control of the military; and 9. No state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution. Traditionally the theory of constitutionalism and the related jurisprudence of human rights emphasized the protection of the individual against arbitrary powers of the states. But is now being increasingly recognized that private and commercial centers of power and many traditional structures of society pose as much a threat to human dignity and personal liberty as abuse of power by the functionaries of the State. A new jurisprudence is emerging in which the indispensability of safeguards against all forms of tyranny- whether by public authorities or private wielders of despotic power is being felt. Turning to law making, of the 900 odd Acts of Parliament passed since Merdeka, there are at least 14 statutes (all presented by the Executive) which cause severe inroads, and, for practical purposes, abrogate constitutionally protected fundamental rights. 1. Public Order (Preservation) Act, 1958. 2. Prevention of Crime Act, 1959 3. Trade Union Act, 1959. 4. Immigration Act, 1959 5. Internal Security Act, 1960. 6. Societies Act, 1966. 7. Police Act, 1967. 8. Emergency (Public Order and Prevention of Crime) Ordinance, 1969 9. Universities and University Colleges Act, 1971. 10. Official Secrets Act, 1972 11. Sedition Act, 1972. 12. Essential (Security Cases) Regulations, 1975. 13. Printing Presses and Publicity Act, 1984. 14. Dangerous Drugs (Special Preventive Measures) Act, 1975 A government that respects constitutionalism will govern the country according to the power provided in the constitution. Our country does practice doctrine of separation power. The executive, Federal Legislature and the judiciary. A matter regarding elections clearly stated in Part VIII in the Federal Constitution. Human rights or fundamental liberties is well defined under Part II. But, in the same document itself put some limitation or could be harshly said to violate our human rights.
The major human rights cases in the 1960's were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In each case executive action based on laws which were clearly inconsistent with the letter and spirit of the fundamental liberties enshrined in Part P of the Federal Constitution was upheld. The Karam Singh case, in particular, was a dangerous precedent; it approved the entirely subjective discretion of a detaining authority which meant that such discretion could not be reviewed by Court, thereby eroding the liberty of an individual (protected by Article 5). The most pernicious legislation is the Internal Security Act (ISA) which gives sweeping powers to the Executive, (the police and the Minister of Home Affairs) to arrest and detain any person for a period of 60 days; thereafter the Minister can order that person to remain in detention for a further two years, which detention can be renewed indefinitely every two years. Preventive detention is terribly insidious because a person's liberty is deprived without trial. Other extraordinary powers extend to prohibiting meetings and banning publications, books and periodicals. When presenting the Bill in Parliament on 21 June 1960, the then Deputy Prime Minister and Home Minister, Tun Razak stated that as there were still 583 armed terrorists in Northern Malaya there was still a need for the people "to be protected from communists subversion." He also gave the assurance that the ISA would be used with the utmost care so as to avoid the abuse. Despite that assurance, more than 20,000 people had been detained during the period 1960 to 1990 under the ISA for diverse reasons which have nothing to do with communist subversion. With the signing of a formal peace treaty with exiled remnants of the Communist Party of Malaysia in Thailand in 1989, reliance no longer seems to be placed by the Executive on communism as a ground for detention. As with other restrictive laws in Malaysia, the ISA, already a powerful weapon in the armoury of the Executive, through a series of amendments, has incrementally extended executive powers, while stripping away the scant judicial safeguards designed to protect against their abuse. Now, the reality is that once a person is detained under the ISA, he or she has no effective recourse to legal protection nor any opportunity to establish his or her innocence of the accusations made against them. As such, the ISA is contrary to the Part II fundamental liberties and core principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reason for arrest, to the presumption of innocence and to a fair and open trial in a court of law. In fact, it would be impossible to find any scholar of worth or independence prepared to argue the contrary.
A government that respects constitution will also govern the country according to the power provided in the constitution. For example in the Proclamation of emergency. In order to ensure security against subversion, organized violence, and crimes prejudicial to the public and emergency powers. The first Emergency, which ended after the 12-year communist insurgency on 31 July 1960, was followed by the Second Emergency, which was declared on 3 September 1964 for the whole of Malaya by reason of Indonesian Confrontation. The Third Emergency, limited to the State of Sarawak, was declared on 14 September 1960 by reason of the events surrounding the dismissal from office of the Chief Minister, Stephen Kalong Ningkan. The 13 May 1969 riots led to the declaration of the Fourth Emergency for the whole nation on 15 May 1969. Finally, on 8 November 1977, the Fifth Emergency, limited to the State of Kelantan, was declared to deal with a political crisis there. The Second to Fifth Emergencies have yet to be revoked.
The issue is whether the proclamation itself is justiciable. Prior to 1979, it was not quite clear whether it was. The Privy Council in Ningkan's case. in 1968, had found it necessary to decide whether such power existed, although the Federal Court in the same case had said a proclamation was not justiciable. Later judicial pronouncement in Malaysian courts appeared, nonetheless, to indicate that it might be held to be justiciable. The Constitution itself subjects government to certain principles which cannot be ignored. It not only disperses power among the federal and state governments, and between the legislative executive and judicial branches: it also provides fundamental liberties as criteria for the treatment of individual citizens. It lays down norms for the public service: the Public Service Commission ensures that the recruitment, conditions and discipline of public servants is independent of the government of the day, and applies the standard of recruitment and promotion according to merit. The Constitution also enshrines the basic conventions of the Westminster-model system of government, such as ministerial responsibility, both collective and individual. The structure of Malaysian government is also broadly similar or analogous to that obtaining in Westminster.
When a constitution is in flux there may not be constitutionalism, but the constitution is there. India amended her constitution nineteen times in six years and the forty-second amendment alone covered 59 clauses of the existing Constitution and the forty-fourth amendment also did not lag behind. Article 31 has been amended and re amended five times in this process. Now there is a rapid succession of amendments; a total of 74 and many more are awaiting completion of the process. Admittedly, whether the frequency amendment is necessarily a bad thing is difficult to say. Or whether the constitutional amendments thus far have changed the original nature of the Malaysian Constitution. But whatever one has to say one has to begin by looking at the number of amendments that have been made since 1957. On the record we have had some 44 amendments. This may create the impression that the Federal Constitution has been amended so often so much so that the existing constitution is different from the one accepted on 31st August 1957. more so when one compares that with the American constitution, which began operation 1787, but has only been amended 27 times in the period of more than 200 years. The growth of political parties, with rigid organizational discipline, the need for rational action in the interest of the public, and the urgency of dispatch in military and foreign affairs, in brief, have resulted in the shift of leadership in all modern democracies. Executive leadership has, in fact, at all times been essential to the success of government. But "constitutionalism and constitutional democracy," observes Carl Friedrich, "have been confronted with a most delicate task: how to discover institutional patterns which would provide vigorous and effective action, without allowing those who are called upon to take such action to turn into irresponsible despots."
Another important general feature of the constitution is the relationship between Islam and the constitution. Freedom of religion is both of importance in it self in a multi-religious society such as Malaysia, and that this principle is in no way contrary to the principle that Islam is the religion of federation. Therefore, it is expected that freedom of religion is specifically safeguard in the constitution. Article 11(1) says that every person has the right to process and practice his religion and subject to clause 4, to propagate it. Article 11 (4) allow States to legislate for the control or restriction of the propagation of any religious doctrine among person professing Islam. Article 11 (5) creates further restriction on freedom of religion by providing that Article 11 does not authorize any act contrary to any general law relating to public order, health or morality. Freedom of religion is however bolstered by other provision. Article 11 (2) says, no person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposed of a religion other than his own. The issues of religion matters were explored in the important case of Halimatussaadiah v Public Services Commission, Malaysia and Anor, where the plaintiff worked with the government since 1973. In 1985, the government issued a serviced circular on the subject of dress code for government officers. The circular mentioned that a female officer could not wear anything that covers her face. At that time plaintiff wore purdah to work. She was later dismissed for not complying with the circular. Plaintiff seeking "inter alia" a declaration that circular which in effect prohibits the wearing of purdah is null and void in contravention of Article 11. Court held that this article protects absolutely the religious beliefs of the people but in exercising religious practices, Article 11 (5) also clearly forbid any act which may lead to public disorder, affect public health or morality. Her practice of wearing purdah to work is not a practice of her religion of Islam but only a customary dress worn by Arab Ladies. What plaintiff claimed to be practice of the religion of Islam is a threat to public order in the circumstances she was in where her work required her to handle files relating to government secrets. The identity of the public officer handling these files should and must determine to avoid dangerous and disastrous results. Contras in the case of Meor Atiqulrahman Bin Ishak & Ors v Fatimah Bte. Sihi & Ors, where plaintiff claimed to have dismissed from school for wearing turbans in school besides wearing school uniform. Plaintiff also seeks for court to declare that their expulsion from school was void and null and no effect. Meanwhile, defendant claimed that contended that plaintiff in wearing turbans had breach Article 3 (5) (v) of the School Rules 1997, prepared by the school headmasters according to the Ikhtisas Circular Letter no.9 (1975) Ministry of Education. The main issues are whether the headmaster had the jurisdiction to prevent all pupils from wearing turbans and whether the rule preventing pupil wearing turbans are null and void according to the constitution. The school rule is declared void and null by virtue of Article 11 (1) of Federal Constitution unless it relates to the general law of public order, public health and morality under Article 11 (5) which overrides Article 3 and 11. Moreover, wearing a turban is valid according to hukum syarak, and not void under civil law for Muslim and non-Muslims. Therefore, the wearing of turban is valid according to the constitution. In conclusion, after through a lot of discussion above, a clear distinctive line could not be distinguished among the government that respects constitution nor constitutionalism. In some cases, government act may differ from the principle hold by the constitution or perhaps require in constitutionalism. In other popular words, the issue discuss here in all respects difficult to be put in black or white.
The Malaysian public universities are generally paternalistic in nature. This is reflected in the offences under the Educational Institutions (Disciplinary) Act 1976. The offences could be largely categorized into several categories namely, main, general, hostel and traffic offences. The main offences are contained in Part IV of the said Act. One of the offences under the main category is where a student becomes a member of any local or foreign political party or workers union or non-governmental organizations without obtaining a prior approval from the Education Minister. This prohibition is extended to acts of having any arrangements with the said organizations, and showing support or doing anything that could be interpreted as to show support to the said organizations. As for the general offences, these are contained in the Educational Institutions (Discipline of Students) Rules 1976 in the Second Schedule of the Act. Among them are prohibitions against gambling, pornographic materials, possession of drugs and drug use. The hostel rules are contained in Part III of the Rules, and these rules that seek to safeguard the decorum of the occupants, and among them are prohibition against vandalism and nuisance. Traffic rules are contained in Part IV of the Rules and these rules seek to regulate the conduct of the motor vehicle users on campus for instance, the registration of the motor vehicle by the owner, obedience of the speed limits, and the parking of the vehicles in the appropriate places. Students are also bound by any other written law of Malaysia. When a student is charged in a Court of Law for transgressing of any law, he or she would be automatically suspended from the University, and automatic expulsion would follow from a conviction.
The procedures
The Educational Institutions (Disciplinary) Act 1976 (Act 174) gives guidelines on the procedures regarding Student Disciplinary Tribunal. When the tribunal is convened, the Secretary of the Board who is usally the Executive Officer from the Students Affairs Department, will read out the charge against the student, and the student would be asked whether he understands the charge which is laid out against him. If the answer is in the affirmative, he would be asked for his plea. If the student were to plead guilty to the charge, the Board would once again explain the particulars of the charge to him, and if the student pleads guilty to it again, the Board would declare a finding of guilty. Sentencing does not take place automatically at this point. The student would be asked to present any mitigating factors, after which the Board would discuss the appropriate punishment to be given. If the student were to present a plea of not guilty, a mini trial would be commenced and the Board would call the witnesses for the Board to present evidence against the student. The student would be asked to cross-examine the said witnesses, following which the Board would reexamine its own witnesses. Next, the student would be asked to present his defence and he could call any witnesses for his side to present evidence before the Board, and the same process of cross examination and reexamination would follow. If the Board makes a finding of guilt, the student would then be asked to present a case for mitigation. The punishments are one or any combinations; there are a warning; a fine not exceeding RM 200.00; suspension for a certain period; exclusion from any parts of the University for a certain period and expulsion. In practice, the University has issued a guideline for the minimum and maximum limits of punishment that the Board could pass. For instance, the maximum penalty for the offence of possession of cigarettes is a fine of RM50.00. A student who is dissatisfied with the decision of the Tribunal could lodge a written notice of appeal to the Secretary of the Tribunal within five days of the decision of the Tribunal and the said officer would then forward the notice to the Education Minister together with the records of the proceedings. -ahmadgeronimo-
