Judiciary

            Basically, judiciary refers to the system of courts in the country. Its main function is to interpret and apply the law. The judiciary is also responsible to uphold the constitution, by reviewing any Acts of Parliament that is against the constitution. It is also important in upholding citizen’s rights and liberties. The judiciary also upholds the concept of the rule of law and separation of powers.

Independence

- Lord Browne-Wilkinson:‘A Judge should be free from any pressure from the Government or anyone else as to how to decide any particular case’

- Tun Mohamed Suffian: ‘Judges are given independence not to bolster their ego but in order to allow them to serve members of the public whose disputes with each other or with the Government should be determined impartially by persons who are free to decide in accordance with the law and their conscience’

- It basically means the ability of a Judge to decide cases on their merits, free of any pressure

Neutrality

- it means the judges’ ability to make decisions without any favour for either parties in all aspects including race, colour, sex, political ideologies, religion and etc.

- There are a few methods to instill neutrality into judges, for e.g. send judges for courses, appoint judges from a bigger cross-section of the community, establish a special judicial appointments commission and etc. However, in reality, none of these will actually be effective.

Protection of Judicial Independence and Neutrality through the FC

- Judicial appointments. Although the appointments of Judges are placed in the hands of the Executive, its decision are deeply informed by judicial advice as well as constitutional and diplomatic considerations. Under Art.123, only those with appropriate legal training and experience can be appointed.

- Security of tenure. A judge can only be removed by the YDPA on grounds specified under Art.125(3) for either a breach of the judge’s code of ethics or inability due to infirmity of body, mind or other cause, to discharge his functions. A special tribunal must recommend the removal.

- Guarantee of remuneration. Remuneration of judges is to be charged directly from the Consolidated Fund. Under Art.125(7), it is payable every year without the need for parliamentary debate.

- Prohibition of public discussion on Judges’ conduct. Discussion is only allowed if at least a quarter of the members of the House enter a motion. Discussion is prohibited at state legislative assemblies. Art.126 and the Court of Judicature Act give Judges’ power to punish for contempt of court.

- Guarantees against packing. The FC specifies the number of judges that can be appointed to each court to prevent the Executive from overruling unfavourable precedents by packing the courts with judges sharing similar political views.

Judicial Problems (Article 121)

- The FC vested ‘judicial power’ in the two High Courts before 1988 Judicial Crisis.

- The new Art.121(1A) only provides for the jurisdiction of the High Courts, Federal Court and the Court of Appeal without the mention of ‘judicial power’.

- The judiciary now is no longer the only one who may have judicial powers. If one day another institution is formed by the government to play certain functions of a judiciary, that new institution is valid. The FC in Malaysia and the constitution in Jamaica and Ceylon did not expressly mention the term ‘judicial power’.

- The Queen v Liyanage and Hinds v The Queen

Both cases involved the setting up of special courts which had not previously existed, and in both cases the Privy Council ruled that the statute establishing the court was unconstitutional because it interfered with the judicial power, impliedly vested by the Constitution in the ordinary courts of law. The principle established in these cases is that any court which is given judicial powers must be staffed by judges appointed in the usual constitutional manner, or else must be answerable to the ordinary courts as a court of inferior jurisdiction.

- PP v Datuk Yap Peng

In this case, Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General.

- In America, the judicial power is expressly mentioned in the constitution.

-Marbury v Madison

The Supreme Court struck down Judiciary Act of 1789 as it was illegal and unconstitutional. The Court carried out judicial review for the first time.

- Article 121(1A) also led to the introduction of the Syariah Courts. It is unique since all modern democratic countries have only one system of courts dealing with all matters.

- It is stated in Article 121(1A) that High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. The issue arising from this is whether the High Court can review the decisions of the syariah courts and whether the introduction of Syariah courts have created a new system of courts giving rise to two different systems of courts. Another question that arises is whether a dispute between a Muslim and a non-Muslim is subject to the civil court or the syariah court.

- According to Harding, the High Court still has jurisdiction to review the decisions of the Syariah courts as major readjustments would be necessary if the amendments intended to create a new legal system.

Judiciary Crisis 1988

            Before 1988, the Judiciary in Malaysia carried out judicial review frequently and struck down laws or decisions which were unconstitutional such as in Mamat bin Daud and Datuk Yap Peng. However, some of the laws struck down were made by the PM, Tun Dr. Mahathir. He was not pleased and he made speeches attacking the Judiciary. The opposition leader cited him for contempt of court when he complained to Time magazine about the Judiciary’s obstructiveness. The case was dismissed but the Supreme Court gave the PM a tutorial on separation of powers. The Lord President replied to the executive criticisms in speeches and from the bench. In the 1987 UMNO elections, the UMNO leadership had been challenged from within the party. Team A which comprises of Dr.Mahathir and Ghafar Baba narrowly defeated Team B comprising of Tengku Razaleigh and Datuk Musa. 11 Team B members filed a suit challenging the legality of the elections as Team A’s 30 branches sent people to vote even though the branches were not registered. Under the Societies Act, UMNO was declared as illegal and the elections were therefore invalid. Then, Team B applied for the registration of ‘UMNO Malaysia’. The application was rejected by the Registrar because the old UMNO had not yet been deregistered and the name was too similar to the old party. Team A immediately deregistered and registered a new party, ‘UMNO Baru’ and the application was granted. Team B proceeded to register ‘Semangat 46’. Parliament amended Societies Act to transfer assets from the old party to ‘UMNO Baru’. After the general election of 1990, BN still won with a two-thirds majority.

            After a meeting between judges was held, Lord President wrote to the YDPA to intervene and stop the accusations made by the Executive on the Judiciary. The YDPA was not happy and told the PM. PM asked YDPA if he could remove the Lord President and the YDPA assented if there are grounds to do so. PM advised the appointment of a Tribunal and Lord President Tun Salleh was then suspended pending the report of the Tribunal. Tun Salleh objected to the Tribunal because the Chairman was the second in line to be the Lord President and it went against natural justice. The Tribunal rejected his argument and Tun Salleh applied to the High Courts to prevent the Tribunal from proceeding for its unconstitutionality. Later, Tun Salleh renewed his application for a stay before the Supreme Court and the five Supreme Court Justices had taken it upon themselves to hear the case granting Tun Salleh an order restraining the Tribunal from submitting its report. However, those five judges were themselves suspended and another Tribunal was formed to investigate charges against them. Subsequently, the Tun Salleh Tribunal reported recommending his dismissal and the Tribunal on the five judges also reported. Finally, Tun Salleh and two other judges were removed from office.

PM and Cabinet

Appointment of PM

- The PM is appointed by the YDPA exercising his discretion in Article 40(2) of the FC.

- The YDPA is expected to appoint the PM from the Dewan Rakyat who is in his judgement is likely to command the confidence of the majority of that House, Article 43(2) of the FC.

- The YDPA might have discretionary powers to appoint a PM during a hung Parliament. However, it has never happened in Malaysia as the ruling party has always secured a majority of seats in the Parliament. Thus, the legal position behind this is not fully certain.

-The YDPA’s power to appoint the PM is a mere formality, as he doesn’t have the power to choose.

- YDPA can appoint a temporary PM in his discretion if all Ministers happen to die together.

Dismissal of PM

- The FC is silent about the dismissal of the PM. However the Reid Commission did mention dismissal but only in the context of a PM that has lost the confidence of the House but nevertheless refuses to resign.

- The Commission gave the YDPA power to sack such a PM.

- Article 43(4) of the FC put the duty on a PM that has lost the confidence of the House to resign. The argument that the power to appoint includes the power to dismissal doesn’t apply, firstly, because the YDPA’s power to appoint is a mere formality, and secondly, it would run counter to Article 43(5) of the FC. Since, Malaysia is a democratic country, and the YDPA was not elected by the people, he should not be given the power to sack a PM.

- To support the argument on whether the YDPA can sack a PM under normal circumstances, reference to several decided cases have to be made. If the Constitution is silent on something, then we have to look at the prerogative power.

- In 1975, PM of Australia, Gough Whitlam lost in the vote of no-confidence, but he refused to resign. Then, the Queen of England directed the Governor General of Australia (Sir John Kerr) on her behalf to sack the PM of Australia and appoint the Opposition leader (Malcolm Fraser) as the temporary PM.

- Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli

In this case, Stephen Kalong Ningkan was the Chief Minister (CM) of Sarawak. There were allegations that some MPs from his party went to the other party and Stephen no longer controls the majority of seats. Some said that Stephen no longer control the confidence of majority. However, he cannot be removed because there is no vote of no-confidence as he refused to call the Assembly to sit. The Governor couldn’t take it and sacked the CM, and the CM sued the governor in court. It was held that a Governor cannot sack a CM (Head of State cannot remove Head of Government under normal circumstances) without a vote of no-confidence.

- Adegbenro v Akintola (opposing view)

It was held that the withdrawal of support could be indicated outside the House and thus the head of state was justified in dismissing the head of government.

- In an earlier case, the Sultan of Perak (Azlan Shah) managed to remove the Chief Minister even without the vote of no-confidence. The Court of Appeal held that the Sultan can remove the CM. It is against the precedent case and against constitutionalism.

-However, Stephen Kalong Ningkan’s case should prevail because the CM is the people’s choice.

Powers of PM

            Why is the PM given so much power? The Prime Minister holds the Cabinet together and is supposed to ensure that the objectives of the Cabinet are achieved. The PM is required to maintain the responsibility and accountability of all ministers on an individual and collective level. The PM is also required to ensure that the Executive is able to administer the country through the formulation and implementation of effective policies. The PM is also an elected representative of the people, and he or she therefore needs to represent the majority in making decisions

- PM can appoint the entire Cabinet without any need for approval by Parliament or by his party, Article 43(2)(b).

- PM has the power to choose, switch, promote, demote and dismiss his colleagues and place them in order of seniority. He may create a new ministerial office or close one. He may transfer functions from one minister to another and even designate one of them to be the DPM.

- PM may require a minister to resign at any time for any reason he thinks fit. If the minister refuses to comply, the PM may advise the YDPA to dismiss him or her. In Datuk Seri Anwar Ibrahim v Perdana Menteri, the court held that the letter of dismissal need not come from the YDPA. It was sufficient for the Monarch to be informed before the PM dismisses his colleague

- PM can determine when the Cabinet shall meet and what to be discussed. He is entitled to say what issue shall be referred to him outside the Cabinet. Disputes between departments in the Cabinet may be resolved by his informal rulings.

- The PM is not bound by Cabinet advice. Many decisions are made by the PM alone or by him after consulting several of his favourite ministers.

- PM can create committees of the Cabinet, choose their membership, prescribe their terms of reference and give them decision-making power. He may preside over some committees

- PM may create an advisory body of outsiders to counsel him on any particular matter.

- PM chooses the senators who are appointed by the YDPA to the Senate under Art. 45(1) of the FC

- PM may give advice to summon, prorogue or dissolve the Dewan Rakyat. However, the YDPA may reject the advice on the dissolution of Parliament under Article 40(2)(b).

- PM figures prominently in the appointment of all important constitutional posts, including judges of superior courts, AG, Governors, Election Commission, and etc.

-PM enjoys substantial powers of patronage. If he does not give a political office to someone he wishes to reward, he may confer on him chairmanship of a statutory corporation or an advisory or consultative body, a royal commission and etc.

Control on powers (briefly)

- Although the PM enjoys wide discretionary powers, he is still accountable to the people as the people will elect the PM every four to five years.

- PM represents the nation in international visits for diplomatic relations. His conduct in ruling the country and overseas will affect the nation.

- The PM cannot continue to be in office if the Cabinet Ministers withdrew their support. Thus, he has to treat his colleagues with respect.

- The MPs may go against him by giving a vote of no-confidence, leading to the PM’s resignation.

- The PM is also subjected to administrative controls.

Separation of Powers

                  The separation of powers in its simplest sense is the division of state into branches, each with separate and independent powers and areas of responsibility. The normal division of branches is into an executive, a legislature and a judiciary.

Definition by jurists:

Montesquieu:
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything; if the same man, or the same body, whether of the nobles or the people, were to exercise those powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."

Aristotle:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element."

John Locke:
"The three organs of the state must not get into one hand...It may be too great a temptation to human frailty..."

Strict sense: There should be a clear demarcation of functions between the legislature, the executive and the judiciary. None should have excessive power and there should be in place a system of checks and balances between the institutions

Liberal sense: It would mean that let there be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be checks and balances between the institutions.

Whether Separation of Powers is followed

Legislature and Executive

Membership

-YDPA is the ceremonial executive and a part of the Parliament (Art. 44)

- PM and his Cabinet are required by the FC to be members of either Houses of Parliament.

Functions

- Executive has the power to make delegated legislation

-Executive controls Parliament. Party Whip – Executive will make sure all MPs do not oppose the Bill that needs to be passed.

Checks and Balances

- Legislature scrutinizes the executive through parliamentary procedures like question time, debates and select committees.

- YDPA acts on the advice of the Cabinet. The YDPA is guided by the FC dealing with the requirement of a Royal Assent to the Bill.

-Parliament may oust a government through a vote of no-confidence.

However,

- The Government usually has a two-thirds majority in Parliament and tends to dictate the Legislative branch

- Weaknesses of Parliamentary procedures such as question time, debates and select committees.

-Opposition lack of equal information in the Parliament

Legislature and Judiciary

Membership

-The highest court in UK was also the highest house of Parliament, House of Lords. Now the highest court in UK is Supreme Court.

Functions

- Legislature regulates its own composition and procedures like enforcement of breach of parliamentary privilege or contempt of Parliament. E.g. Stockdale v Hansard.

-Judicial organ makes law through the doctrine of judicial precedent.

-Judges are not supposed to make law. When judges make the law, they may not have made proper studies on the issue yet. Laws made by the judges are up to the personal preferences of the judge. Law made by Parliament will be balanced out because there are over 100 or 200 people in Parliament. Judge made law is automatically retrospective, can never be prospective. A judge can only make the law when the case comes to court. When the case comes to court, the event already happened.

-Judicial organ interpret statutes through differently, altering the literal meaning of the statutes. Purposive approach and mischief rule, judges may end up making law under the term of statutory interpretation.

- Parliament can pass laws that apply retrospectively in civil cases (Art.7)

-YDPA is from the Parliament, and appoints judges

Checks and Balances

-No MP can hold judicial office and vice versa to maintain independence of the judiciary

- Judiciary can declare an Act of Parliament as unconstitutional.

-Conduct of judges cannot be discussed in State Legislative Assemblies. Conduct can only be discussed in Parliament on a substantive motion of which notice has been given by not less than one quarter of the total number of members of that House

- Judiciary can control delegated legislation by declaring any subsidiary legislation inconsistent with any Act of Parliament or State Enactment void to the extent of the inconsistency.

- Parliament can pass laws to overwrite judge-made law

-Parliament can remove judges, by forming a tribunal and deciding.

Whether checks and balances are effective

- Not really, because the Executive dominates the Parliament, and the Parliament is forced to carry out its functions on behalf of the Executive. For example, passing a Bill containing policies of the Executive

Executive and Judiciary

Membership

-Indirect. Executive appoints the judges of the superior courts.

Functions

-AG who is part of the Executive, performs a judicial function,i.e. power to prosecute or not to prosecute

-Judges of Session and Magistrate courts are members of the judicial and legal service. They are transferable from the Bench to the AG’s Chambers and the government departments

- Chairpersons of administrative tribunals are not judges, but they perform the role of a judge.

- Statutory Interpretation. Judges will end up questioning policies even though they are not supposed to do so. Policies are done by the Executive. Purpose of the act can be equated to the policies.

-Under the Executive, the Home Minister can detain anyone without trial under the ISA. It prevents the courts from performing their functions.

Checks and Balances

-No Member of Executive can hold judicial office and vice versa

-Judges can only be removed from their office for misbehavior or inability to properly discharge the functions of their office

- Art.123 provides safeguards for the appointment of judges by the Executive by prescribing qualifications

- FC contains express provisions to secure independence of the judiciary from interference either from the Executive or Legislature.

Whether check and balances are effective

- Judicial powers of the Courts have been removed by the Executive

-Latent threats, the financial and other resources necessary for the judiciary to function properly is under the Executive

-PM can insist on appointment of a judge even if the Conference of Rulers disagree
-PM can pass laws inconsistent with the Constitution under Art.149 and Art.150

Whether there are overchecking and overbalancing

-Judiciary seldom performs judicial review, especially after the 1988 Judicial Crisis.

-Executive dominates the Parliament. Majority of the MPs comes from the Executive.

Promissory Estoppel (Consideration)

Promissory Estoppel

                There may be promises where there is no consideration but which may be given effect by the doctrine of promissory estoppels.  The doctrine may apply in a situation where both parties are in an existing legal or contractual relationship and one party (A) promises to relieve another (B) of some previous obligations.  In this situation, the doctrine of promissory estoppel seeks to prevent A from reneging on his promise to fully enforce A's previous rights against B. Thus, the doctrine is said to act as a defence and not as a cause of action ("as a shield but not as a sword").

For the doctrine to apply, these elements must exist:

(a) One party makes a promise with the intention that the other party should act in reliance on the promise;

(b) The promisee has acted in reliance on the promise;

(c) It is inequitable to allow the promisor to go back on his promise.

The doctrine only suspends the promisor's (A) rights but does not take it away (suspensory and not extinctive). The party who had relied on it (B) is granted temporary relief until A gives further notice provided B can be put back to his original position. Otherwise, A's right may be denied to avoid the detriment that B may suffer.

Common Law position

Hughes v Metropolitan Rly Co. (1877) 2 App Cas 439

In this case, the plaintiff, the owner of a house gave the defendant, the tenant, six months notice in October to carry out repairs to the house failing which the tenancy would be terminated. In November, the landlord carried out negotiations with the tenant with a view to selling the house to the tenant. The negotiations ended in December and the tenant had not carried out repairs to the house. After the six months, the landlord brought an action to evict the tenant from the house.

The House of Lords held that the negotiations commenced by the landlord constituted a promise that as long as the negotiations continued, he would not enforce the notice for repairs to the house. The tenant had acted in reliance on the promise as he had done nothing to make repairs to the house while the negotiations were ongoing. Thus, the period of the notice should be calculated from the date the negotiations ended, and not six months from the date the notice was given. In this case, the doctrine suspended the landlord's original rights.

Lord Cairns: “ It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

In this case, the defendant rented flats from the plaintiff for 99 years for a certain rate. When World War II broke out, the plaintiff agreed to reduce the rent. The defendant paid rent according to this new rate from 1941 to 1945. At the end of 1945, the plaintiff claimed for rentals as well as arrears based on the old rate.

Lord Denning: “when one party gives a promise with the intention that the other party should act in reliance on that promise and the other party does so act, the promise must be fulfilled although no new consideration is given for the promise. The reason promissory estoppel can only be used as a defence is because no consideration has been given for that promise. The other party cannot be said to enforce a new contract because there is no new contract (for want of consideration). But the party who has suffered a detriment as a result of relying on the promise may, when the party who has given the promise brings an action against him, raise the promise as a defence to estop him.”

Malaysian position

Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331

http://www.ipsofactoj.com/archive/1995/Part04/arc1995(04)-014.htm

In this case, the appellant bought goods from Chemitrade Sdn Bhd (Chemitrade). Chemitrade entered into a factoring agreement with the respondent whereby the debts owed by the appellant to Chemitrade were assigned to the respondent. Chemitrade gave to the respondent copies of the invoices in respect of the sale and delivery of goods to the appellant. The respondent then stamped the invoices with the endorsement that any objection must be made within 14 days of receipt and sent the invoices to the appellant. The appellant did not complain within the said period nor challenge the respondent's imposition of the endorsement. After several payments on the invoices, the appellant refused to make payment on 20 invoices. The respondent argued that since the appellant did not protest about the validity of the endorsement, it was entitled to assume that the appellant had accepted it.

The Federal Court applied estoppel and held that as the appellant, Chemitrade and the respondent had proceeded upon the assumption that the factoring agreement was a valid assignment, it would be unjust and unconscionable to allow the appellant to challenge the document now. The Court further held that a reasonable person in the respondent's position would be entitled to assume that the appellant had agreed to the endorsement by remaining silent and making payment on the invoices.

This case is significant as the Federal Court clarified and restated two elements of the doctrine of estoppel, the first as to the effect which the representation had upon the mind of the person relying on the estoppel and the second, whether the person must have acted to his detriment.

Gopal Sri Ram JCA: “The traditional view ... is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way ... we are of the opinion that this requirement is not an integral part of the doctrine. All that the representee ... need to do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that "his conduct was so influenced by the encouragement or representation ... that it would be unconscionable for the representor thereafter to enforce his strict legal rights"…We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights.”

Sim Siok Eng v Government of Malaysia [1978] 1 MLJ 15,FC

In this case, the appellant was assigned to construct a building but he failed to complete it on time. The respondent had promised to supply the appellant with construction materials which were difficult to obtain. The respondent had stopped supplying these materials without notice to the appellant.

The Federal Court held that the respondent's promise to supply the construction materials was a variation of the original contract. The appellant had relied on the promise and had changed his position in reliance of it. Therefore, the original contract was suspended and if the respondent wanted the original contractual position to resume, he should give notice to the appellant.

Consideration (Contract)

Past Consideration


- Section 2(d) of Contracts Act 1950

          Anson in his book ‘Anson’s Law of Contract’ has explained the issue on past consideration. Anson stated that “Executed consideration must be distinguished from past consideration which is a mere sentiment of gratitude or honour prompting a return for benefits received and is no consideration at all. In the case of executed consideration, both the promise and the act which constitutes the consideration are integral and co-related parts of the same transaction. In the case of past consideration, however, the promise is subsequent to the act and independent of it; they are not in substance part of the same transaction. Thus if A saves B from drowning and B later promises A a reward, A's action cannot be relied on as consideration for B's promise for it is past in point    of time." In Malaysia, both executed consideration and past consideration are good consideration. 

 In Common law, past consideration is not good consideration.

 Re McArdle [1951] Ch 669. 

In this case, a house was the joint property of a few siblings living together. The plaintiff, the wife of one of the brothers paid for repairs to the house. Then, the siblings agreed to pay her 488 pounds as the consideration for the repairs. Later, the plaintiff sued for such payment, the defendants in the suit other than her husband. The issue was whether such consideration exists. 

The Court held that, as the repairs had been carried out before the agreement to pay had been made, it was past consideration and therefore not good consideration.

The rule of past consideration is not good consideration has an exception. If an act is done at the promisor’s request, although the promisor’s promise was given only after the act has been carried out, the act is good consideration.

Lampleigh v Braithwait (1615) Hob 105

the defendant committed murder and requested the plaintiff to obtain a royal pardon for him, the latter successfully doing so. Later, the defendant promised the plaintiff payment of 100 pounds.

The court held that the consideration was good because the act had been carried out at the defendant’s request.

Guthrie Waugh Bhd v Malaiappan Muthucumaru [1972] 1 MLJ 35

Sharma J: “The words 'has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing' in clause (d) of section 2 of the Contracts (Malay States) Ordinance 1950 indicate the wide ambit of the definition of 'consideration.' Past consideration, unlike in England, is quite valid in that part of our country where the Contracts Ordinance is applicable.”  

Hongkong and Shanghai Banking Corporation v Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449

In this case, the second defendant argued that since no further money was advanced to the first defendant by the plaintiff at the date or after the signing of the guarantee, the guarantee was actually to secure past advances and thus was past consideration and not enforceable. The second defendant’s contention was rejected.

Ian HC Chin JC: “… past consideration can still be good consideration even if the benefit was not given at the time of the execution of the guarantee in a one-off transaction provided the benefit that was given before the execution of the guarantee was given 'at the desire' of the guarantor…”

SEA Insurance Bhd v Nasir Ibrahim [1992] 2 MLJ 355; [1993] 1 SCR 89

Gunn Chit Tuan SCJ: “The detriment undertaken by the promisee ... is a past performance and should be sufficient consideration where there is a promise in consideration of some act previously done by the promisee at the request of the promisor. In deciding whether consideration is past, the court should not take a strictly chronological view. If the consideration and the promise are substantially one transaction, as in this case, it should not matter in what order they are given. In other words, consideration itself accommodates past consideration so long as the 'desire' requirement is specified, that is the guarantee was given at the request of the indemnifier.”

GBH Ceramic Sdn Bhd v How It @ Low Aik & Ors [1989] 2 CLJ 427

In this case, the defendant guaranteed the payment of all monies and obligations of one Heng Lee Enterprise due and owing to the plaintiff under a contract for goods sold and delivered. The defendant’s contention was that consideration given by the plaintiff was void for past consideration because the goods supplied by the plaintiff were sold and delivered over a period of time before the execution of the guarantee.

The Court held that, from the letter of guarantee, it was clear that the plaintiff’s act was done at the defendant’s request.

Lau Ngiik Ping & Anor v Bank Pertanian Malaysia [1992] 3 CLJ 1437

the borrowers applied for loan from the defendants, to be secured by a charge over land owned by plaintiffs. The loan money was released by the defendants a day after the signing of the agreement. However, the memorandum of charge was executed only one month after. The plaintiffs contended that the release of monies was without security, and thus consideration was past consideration.

 

The Court of Appeal held that the issue could not be looked at in isolation only because the execution of the loan agreement, the release of the loan and the execution of the charge instrument took place on different dates. This letter of authorisation indicated that it was at the desire of the plaintiffs that the defendants agreed to grant the loan to the borrowers. This constituted good consideration under s 2(d) of the Contracts Act.

Aseambankers Malaysia Berhad & Ors v. Gula Perak Berhad & Anor [2010] 1 LNS 1409

In this case, the plaintiffs are lenders and provided facilities to the 1st defendant and the 2^nd defendant is the guarantor. The defendants argued that there is no consideration for the supplementary agreement.

The court held that “...it is well settled in Malaysian context even past consideration is good consideration though the position may not be the same at common law.”

Zainal Abidin Ahmad v Kenari Air (M) Sdn Bhd & Ors [2011] 1 LNS 144

In this case, the 3^rd defendant alleged that the Letter of Guarantee was void due to past consideration. The court cited the case of Hongkong and Shanghai Banking CorporationHONGKONG AND SHANGHAI BANKING CORPORATION v. Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 3 CLJ 419 where the headnote reads: “...Past consideration could still be good consideration...provided the benefit that was given before the execution of the guarantee was given 'at the desire' of the guarantor.”         

 

Constitutional Supremacy (Continuation)

Constitutional Supremacy means that the constitution is the supreme and highest law of the land. The Parliament or Legislature may pass laws provided that they are in line with the constitution. Any laws in conflict with the constitution will be deemed as unconstitutional and invalid by the courts. The Federal Constitution is the written constitution in Malaysia. Article 4(1) states that “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.” A written constitution represents a higher law, not merely because it is written, but because these rules are far more difficult to amend. The Constitution is usually amendable by special majorities as opposed to ordinary or simple majorities. In Malaysia, amendments to the Constitution usually require two-thirds of the total number of members of each House of Parliament. Requirements for amendments can be found in Article 159 of the FC.

Cases on Constitutional Supremacy

Marbury v Madison

President John Adams, before his term ended, had made many federal appointments, including William Marbury as justice of the peace in the District of Columbia. Thomas Jefferson, the new president, refused to recognize the appointment of Marbury. The normal practice of making such appointments was to deliver a "commission," or notice, of appointment. This was normally done by the Secretary of State whom at the time was James Madison. At the direction of Jefferson, Madison refused to deliver Marbury's commission. Marbury sued Madison, and the Supreme Court took the case. Chief Justice John Marshall wrote that the Judiciary Act of 1789, which spelled out the practice of delivering such commissions for judges and justices of the peace, was unconstitutional because it the gave the Supreme Court authority that was denied it by Article III of the Constitution. Thus, the Supreme Court said, the Judiciary Act of 1789 was illegal and not to be followed.

This was the first time the Supreme Court struck down a law because it was unconstitutional. It was the beginning of the practice of "judicial review."

Chief Justice Marshall explained the power of the constitution:

" It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "

Ah Thian v Government of Malaysia

Suffian L.P observed : " The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution written law may be invalid on one of these grounds: (1) Art 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Art 75".

Mamat bin Daud & Ors v Government of Malaysia

In this case, the application for leave under Article 4(4) arose as to whether Sec 298A of the Penal Code and Criminal Procedure Code were ultra vires the Constitution being in excess of the legislative power of the Parliament.

Mohamed Azmi SCJ : For the applicants to succeed, they must satisfy the court (a) leave is necessary under Art 4(4) & (b) they have an arguable case in that the application is not frivolous. Since the present application was not considered frivolous by the court, it allowed the applicants to canvass their case before the full court on the constitutionality and validity of the new section.

PP v Dato' Yap Peng

Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General

Cases involving inconsistency with the Constitution

Phang Chin Hock v Public Prosecutor

Federal Court held that "The rule of harmonious construction in construing Article 4 and Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in Article 159 are valid even if inconsistent with the constitution".

Loh Kooi Choon v Government of Malaysia

Federal Court rejected the argument that the Constitution as the Supreme law cannot be inconsistent with itself. In this case, Parliament amended Article 5(4), denying persons detained under restrictive residence law, right to production before a Magistrate. The amendment was given retrospective effect to independence day.

Parliamentary Sovereignty v Constitutional Supremacy

1. Parliamentary Sovereignty

The definition of parliamentary sovereignty in its basic form simply means that the Parliament is supreme and has unlimited law-making power. The Parliament may enact, amend or repeal any law as it wishes. This concept is practised in countries without a written constitution. For example, United Kingdom.

The concept of Parliamentary Sovereignty is best explained under AV Dicey's 3 postulates

i) Parliament is legally competent to legislate upon any subject matter

ii) No Parliament can bind its successors nor be bound by its predecessors

iii)Once Parliament has legislated, no one can question the validity of the legislation

Application of Dicey's 3 postulates

1st Postulate

- Resignation of King Edward VIII in UK. King Edward wanted to marry an American divorcee, Wallis Simpson but the marriage would be deemed morally unacceptable because remarriage after divorce was opposed by the Church of England. However, King Edward chose to marry Simpson, thus he would be abdicated. The Parliament then had to enact such law as there were no law regarding the abdication. Therefore, His Majesty's Declaration of Abdication Act 1936 was passed. Under the Act, King Edward may no longer be king and the generations after his may no longer be king.

- Burmah Oil Company v Lord Advocate 1965

During the World War, Japan conquered Burmah and the British ran away but they burnt all of the oil rigs to prevent the Japanese from obtaining the oil. After the war, Burmah Oil Co. sued the British government for compensation. The House of Lords decided that the British government has to pay compensation to Burmah Oil Co. because the oil was not destroyed during the war. The government immediately introduced into Parliament the War Damage Bill to nullify the decision. War Damage Act 1965 states that in future, any damage done during the war whether during the actual battle or not during battle, compensation will not be paid. The House of Lords' decision was overturned by the passing of the Act by Parliament.

- In 1991, the British government tried to pass an act known was War Crimes Bill to punish whoever committed crimes during the 2nd World War. Any of the British soldiers who had committed crimes such as rape,molest,etc are to be punished. However, the people opposed and the government couldn't pass the law.

- Septennial Act 1715.

Parliament can also extend or shorten their own 'life' in the Parliament. In the past, the Parliament has done so, extending from 5 years to 7 years, but it is back to 5 years.

- Mortensen v Peters 1906

Those in the United Kingdom who wishes to do fishing must apply for a license from the Fisheries Department. There was also can international law which says that countries can only regulate their own territories up to 10 miles outside their shore. Up to 10 miles from the beach, and after that it is considered as international waters regulated by international laws even though it is under UK territory. In this case, the person was fishing in the sea and he was outside 10 miles without a licence. UK government charged him for fishing without a licence. The UK law did not apply to him because he was not in UK territory and international law didn't ask for any licence. However, the Court held that an Act of Parliament is the highest and will overwrite international law if they want to.

2nd Postulate

- Vauxhall Estates Ltd v Liverpool Corporation

In this case, the government wanted to purchase a piece of land from Vauxhall Estates. The Government needs to pay compensation to purchase the land. At the time, there were two different schemes of compensation from The Housing Act 1925 and the Acquisition of Land (Assessment of Compensation) Act 1919. The 1925 Act did not mention anything about the earlier Act. Section 7(1) of the 1919 Act provides that compensation cannot be amended by future Parliaments. The Court decided that the later Act will always prevail over the previous Act. The earlier Act can never bind the future Act. Thus, the Parliament is always supreme.

- Ellen Street Estates v Minister of Health

The facts of this case are similar to Vauxhall Estates'. However, the lawyer in this case tried to circumvent the previous case. It was argued that under normal circumstances, the later Act will always prevail over the earlier Act. However, the circumstance in this case is not normal because the earlier act says that this act will be applicable forever. If that is the situation, then the only way for the later act to repeal the earlier act is by mentioning expressly to repeal the earlier act. The Court held that the lawyer's argument is wrong because the Parliament can always expressly or impliedly repeal an act. There are 2 ways for the Parliament to repeal the earlier laws; by the doctrine of express and implied repeal.

3rd Postulate

- Pickin v British Railways Board

In this case, there was an Act of Parliament that says that for every carriage of train that goes through a person's land, the person will be compensated. The British Railways Board proposed a Private Members Bill into the Parliament to remove such compensation. The Bill went through Parliament and became an Act. Pickin was an owner of a land where carriages of train would go through. After the passing of the Act, he would not receive any more compensation. He brought an action in court saying that certain procedures were not followed. After the 1st and 2nd reading, the Parliament was supposed to inform those who would be affected by the Bill so that they could defend their own rights. Court held that once a Bill becomes an Act, we cannot enquire into the validity of the Act. Even if a Bill did not go through the 2nd or 3rd reading, the Act still cannot be questioned.