Thursday, February 3, 2011

International Law 2005 Q3

Explain the view of the relationship between international law and domestic law which Malaysia supports, with the aid of decided cases. (25 marks).

Today as the international law rapidly grows, many of its law now gradually being accepted in the domestic law. Such reception can be by way of direct adoption or by some other method of localizing the said law. However, there are two approaches in reception of international law that are currently applied by all nations. They are known as doctrine of incorporation and doctrine of transformation.

Doctrine of incorporation is an automatic reception of the international law into domestic law without the formal needs for official legislation to sanction it and give effect to it. This ‘automatic’ adoption is said to operate unless there is some clear provisions in the domestic law, such as a statute or judicial decision, which preclude the use of the international law. The reason for this view is because the international law becomes part of domestic law without the need for express adoption by the courts or legislature. This doctrine widely being implemented in UK.

On the other hand, doctrine of transformation works entirely opposite to the doctrine of incorporation, that is to say, any international law must be mindfully/consciously be transformed through legislation before the said international law could be implemented locally.

Some scholars are of the views that the doctrines of incorporation and transformation correspond with ‘monism’ and ‘dualism’ theories respectively. Monism theory advances that international law and domestic  law are part of the same legal order and this is reflected by the fact that international law is automatically incorporated into domestic law. Under dualism, international law and municipal law are two separate systems of law operating in its own area of competence and transformation is needed to implement domestically.

Be that as it may, during English occupation, the application of international law by the local courts in Malaysia was the same as the British courts, i.e. doctrine of transformation in respect of international treaties and doctrine of incorporation with certain limitations in respect of customary international law.

However, the attitude of judicial application of international law after independence has somewhat changed slightly. As far as the international treaties are concerned the Malaysia Court will implement it as part of the domestic law only if they have been transformed into domestic law by means of official legislation and the application of customary international law, sadly, is not so consistent and no clear-cut policy of judicial practice.

Under Article 160 of the Federal Constitution, in Malaysia definition of law encompass written law, common law etc. insofar as it is not inconsistent with the Federal Constitution or any part thereof. According to section 3 (1) of the Civil Law Act, English common law is to be applied by the Malaysian courts in the absence of any written law (i.e. statutes) and provided that it is not contrary to public policy of Malaysia. In England, Customary international law is deemed to be part of English common law in so far as it is not in conflict with a statute or a judicial decision of final authority. Thus, to what extend the customary international law which is applied in UK as common law is applicable Malaysia? Beside the cut off date in has set in the Civil  Law Act 1956. Section 3, of the said act, confers that the common law in UK is applicable in Malaysia, to the extent that it is not contrary to the Malaysian statutes and public policy of Malaysia.

Premised on the above, in PP v Oie Hee Koi, the accused were captured during the Indonesian confrontation campaign against Malaysia. The Federal Court allowed the appeals of the accused on the ground that they were prisoners of war and entitled to the protection of the 1949 Geneva Conventions. On appeal, the Privy Council held that they were not entitled to be treated as prisoners of war. Although the main issue was concerned with the interpretation of the Geneva Conventions of 1949, the Privy Council stated that the position of the accused was covered prima facie by customary international law.

In Malaysia, Parliament may make law in respect to any of the matter enumerated in the Federal List or the concurrent list as provided in
Article 74(1) of Federal Constitution, which include matters of external affairs such as treaties, agreement, conventions etc. and the implementation of the same. The executive power is vested upon the Yang Di Pertuan Agong (YDA) or by the cabinet(Article 39). This proposition is affirm in the case Gov. of the State of Kelantan v Fed. Gov. M’sia & Tuanku Abdul Rahman. In this case, Kelantan challenged the constitutionality of the Malaysia Agreement, which was an international treaty signed by the United Kingdom, the Federation of Malaya, Singapore, Sabah and Sarawak. The prime argument put forward by the Kelantan Government was that the consent of the individual States of the Federation of Malaya should have been obtained before the arrangements for Malaysia can be lawfully implemented. Referring to Articles 39 and 80 (1) of the Federal Constitution, the Court affirms the constitutionality of the Malaysia Agreement and the executive authority of cabinet in concluding a treaty.

In Public Prosecutor v Orhan Olmez, the Secretary to the Embassy gave evidence in court and further agreed to attend court to give further evidence in his capacity as consul as to the authentication of legal documents. This was confirmed by letter. However, later the consul refused to attend send another diplomatic note to that effect. The respondent applied to the court to issue a warrant of arrest to compel the attendance. In addressing the legal issue of waiver of immunities, Supreme Court of Malaysia relying to Article 32 of the Vienna Convention on the Diplomatic Relations 1961, which has been transformed into Malaysian law by means of the Diplomatic Privileges (Vienna Convention) Act 1966, the Court held that a waiver under the Vienna Convention must always be express.

Again in MBF Capital Bhd. & Anor v Dato’ Param Cumaraswamy, the High Court of Malaya applied the International Organisations (Privileges and Immunities) Act 1992 in a case involving immunity of a Special Rapporteur of the UN Human Rights Commission.

Be that as it may, in PP v Narogne Sookpavit, the respondents were Thai fishermen who were arrested and charged under Fisheries Act (s.11(1) of Fisheries Act, 1963) for illegal fishing in Malaysian sea. The trial court acquitted all the accused and the prosecutor appealed. The respondent argument was ‘right of innocent passage’. The Court held that ‘the right of innocent passage’ may be a customary international law but since Parliament did not enact law to give effect to it and in the absence of such statute international law could not be implemented in Malaysia as part of domestic law.

Thus, based on the above, we can conclude that Malaysia only supports the doctrine of transformation which allows the Parliament to approve, modify (if necessary) and give effect to the international law to operate domestically.


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  2. 2. Discuss the Zimbabwean practice regarding the application of international law concepts in the light of the underlying doctrines of ‘incorporation’ and ‘transformation’. Support your discussion with decided cases.

    Anyone who can help please