In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one organ (E.g. : Judiciary) upon another (E.g. : Legislature) if its action is mala fide, as the citizen can challenge it under Article 32 and 226 of the Constitution.
1 Introduction In this essay we are going to firstly start by defining as to what is constitutional interpretation and then critically discuss the approach to constitutional interpretation. Furthermore give a discussion of how does constitutional interpretation differ from ordinary statutory interpretation and the analysis as to what extent this approach was followed in the case of Stransham-Ford and the Nkandla case. Constitutional interpretation can be defined as the theory or the method of thoughts that describes a general approach which the judiciary uses to interpret the law, constitutional documentation and the legislation. Constitutional interpretation is precisely known/defined as the commanding interpretation of the supreme constitution
Sources of Malaysian Law Malaysia has been practicing mixed law which includes Customary Law, Common Law and Islamic Law. Three momentous periods in Malaysian history had contributed laws towards Malaysia’s legal system which were the Malacca Sultanate, to the raise of Islam to Asia, then the indigenous culture of British colonial rule introducing a constitutional government and the common law. Most of the laws implied in Malaysia’s legal system is primarily from the common law which can be classified into two, written and unwritten law. The most essential source of law is the written law. Written law includes the Federal and State Constitutions, Legislation and Subsidiary legislation.
Through the colonization footprints, British introduced and applied Common law to the colonies. So, Common law tradition impacts most of the Commonwealth Countries’ current legal systems. United States, New Zealand, South Africa, Canada, Australia, Malaysia and Singapore are based on Common law tradition. The Civil law tradition is the oldest and more widely used legal system but it took longer time to develop than the Common law. The Economist (2013) described the origin of Civil law tradition as follow: European rulers drew on Roman law, and in particular a compilation of rules issued by the emperor Justinian in the 6th century that was rediscovered in 11th-century Italy.
In addition, this thirteen states form a federal government led by the prime minister. In Malaysia the Yang Dipertuan Agong is the head of Federation and the prime minister is the head of government. Federalism is a type of government where the power and resources are divided into the federal, state and local level. But, still the state and the local government must abide to the Malaysian Federal Constitution since the Federal Constitution is the supreme law of the land. ( Article 4 of Federal Constitution) The basic features of the federalism systems are it practicing the separation of powers between the executive, legislative and judiciary body.
Just as in other countries, the law in Malaysia can be found not only in legislation, but also in cases decided by the courts. The courts in question are the Federal Court, the Court of Appeal, and the two High Courts. This is because only decisions of superior courts are sources of law as they are the courts that decide on matters of law whereas lower courts generally discuss on matters of fact. Decisions of the higher courts are binding to the lower courts which is known as stare decisis. Stare decisis is a latin term which means to stand by what has been decided.
However, two of the most important regulations of the Britain constitution are known because it is much based on Parliamentary Supremacy (means that Parliament can, if it chooses, legislate contrary to the fundamental principles of human rights) and the division of powers (meaning that Parliament, as opposed to a written constitution, it is the highest source of law in the United kingdom and that the executive, the legislature and the judiciary powers would be divided among themselves. Additionally, the possibly existence of only a few other countries in the world that does not have a written, along with new change of constitution such as the Human Rights Act of 1998 and the Constitutional Change Act of 2005 have rekindled the debate on whether or not the United Kingdom should write its constitution . This essay will start by introducing some of the proposal that have been shown and forwarded for a codified constitution. It will then argue that even though it is
The Executive Branch in Malaysia made law by the parliment by Parliament. Each part of the Executive has its own role to handle. It also held responsibility for the government administrative system, it has the authority to adjourn and dissolve the legislature. In the federal government, the Executive consists of conference of rulers, Yang di-PertuanAgong (YDPA), Prime Minister, Cabinet, Public Services. The Conference of Rulers is made up of the nine Rulers and the four Yang di-PertuaNegeri (Governors) of the States which do not have Rulers.
English law became the law of the land through the implementation of the Charters of Justices in 1807 and in 1826. The Charters established a judicial system and made the English common law applicable to the inhabitants of the land so far as religion and customs permit. In Penang, the First Charter of Justice of 1807 introduced the first ever judicial court which had similar jurisdictions as the courts in England and in 1826, the Second Charter of Justice was introduced into the 3 states of the Straits Settlements which had minor amendments. With the above as an introduction, I agree with the statement as I believe that the introduction of English Law in the Straits Settlements had reversed
An “unwritten” constitution is a problem or a miracle. The constitution is “the set of laws, rules and practices that create the basic institutions of the state”. A historic constitution which in the years has a lot of changes and interventions from outsides powers, separations of three main bodies in the way that it works. We can see here that government is capable to enact laws, using the power of the Crown with the Parliament of course, which no other body can challenge, and the judiciary based in these statutes and laws can make also the precedents or else common law. Important changes happened a lot of years before and until our days we can see amendments in this system because as we said we have an “unwritten” constitution which is more flexible than others which are in codified form.