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Substance of the document
08/08/2006 The Star ARTICLES OF LAW By BHAG SINGH
LAWS and regulations are all around us. In a society where relationships are
getting more impersonal and transactions more complex, the need for rules
and guideline cannot be denied.
However, as a reader correctly points out, not all the restrictions placed
on what can or cannot be done are contained in the laws. Sometimes such
restrictions are set out in Codes and, on other occasions, as Guidelines.
But does this make any difference?
There is no one single answer to these questions. There will be consequences
in the case of not complying with, or contravening, such requirements. What
the consequences are depends on what is not being complied with or what is
being contravened.
The word “law” is taken to mean legislation that is passed by a Legislative
Body empowered to pass laws. Today, the legislative bodies are the
Parliament and the State Legislative Assemblies.
The members of the Lower House of Parliament and the State Legislative
Assemblies are elected directly by the people, i.e. those who are eligible
to vote and have registered themselves for the purpose. Of course, even such
bodies may have a component whereby the members are not directly elected in
this manner. An example would be the Senate as compared to the Lower House.
Its members are not elected in the same way as members who sit in the Lower
House who are referred to as Members of Parliament or MP’s.
Before Merdeka Day, the country also had a legislative body but its members
were appointed; this does not prevent it from being a legislative body.
After all, a legislative body is one that makes the law. As to how the body
comes to be set up is a separate matter.
Some of our laws are derived from, and based on, the English Common Law
which constituted the basis and backdrop to our system of law. Still, the
laws contained in the legislation that has been enacted is generally viewed
as constituting the bulk of our law.
In this connection, the word Act is now always associated with the laws
passed by Parliament at the Federal Level. The words Ordinance and Enactment
are generally used in relation to laws passed by a State Legislative
Assembly depending on the preference of each state for one word or the
other.
The word Ordinance has, in the past, been used by the Federal Legislature in
passing laws before Independence. Similarly the word Enactment has been used
in laws pertaining to the individual states in the former Federated Malay
States and the Straits Settlements.
Then there are rules and regulations. These are usually laws made by a
Minister to supplement what is in the Act that has been passed. Similarly,
rules and regulations are made at the state level.
There are also occasions when the word Code is used. This word is often used
in the context of self-regulation by a particular industry or a body of
persons associated for a business, sports or professional purposes, amongst
others. In such cases, it does not have the force of law but represents a
voluntary undertaking by those who have subscribed to it and agreed to abide
by it.
Thus the Code of Advertising Practice is an example of a self-regulatory
effort to regulate advertising. It is put in place and supported by various
parties involved in the advertising industry. Decisions made by the
advertising Standards Authority which administers the Code are therefore
voluntarily complied with by those who have subscribed to the Code.
However, whether a Code only binds those who subscribe to it or has the
effect of law depends on the document itself. This is in terms of who
brought it into existence, what it actually is as opposed to what it is
called.
Thus if a law is passed in Parliament but called a Code, then what has been
stated in the preceding paragraph will not apply. In such a case, it is in
reality an Act though it is called a Code. An example is the National Land
Code – it governs the alienation of land and the creation of encumbrances
for diverse purposes. Transfer of land and creation of charges are provided
for in the Code as is the indefeasibiliy of title aspect.
Otherwise a Code contains provisions which are binding only on those who
subscribe to it and who have therefore in the process agreed to be bound by
it. If they do not comply, the consequences will depend on what is provided
for in the Code. The enforcement of such provisions is entirely a matter of
contractual rights and obligations.
What is the situation with Guidelines? Again, it depends on whether the
Guidelines are in the category of matters in a self-regulating document
between parties who have voluntarily entered into and adopted the guidelines
or these Guidelines are set by a government department.
Where the Guidelines are set by a government department, these could be as
effective as, if not more effective than, being in an Act. Whilst
non-compliance with such Guidelines may not attract a fine or a jail
sentence, the enforcement of the Guideline may have serious implications
because, in order to obtain certain approvals essential to the conduct of an
activity, there may be a requirement that these Guidelines be complied with.
Failure to do so may result in the withholding of approvals.
The effect therefore may be greater than non-compliance with the law
because, whilst a law is open to be interpreted by the Courts, no such
opportunity may exist if what is involved is an administrative guideline in
relations to which the Courts may be reluctant to interfere. As a result,
the person in charge is likely – in reality, if not in law – to be the final
arbiter.
Then there are situations where a professed self-regulatory Code may not be
a matter which is left entirely in the hands of those it governs or who
formulate it. An example is the Content Code under the Communications and
Multimedia Act 1998.
The Code is no doubt formulated by the industry but its effectiveness is
dependent on its being registered with the authorities. If, at that stage,
conditions are imposed for its legislation which are not favoured by the
industry, then the concept of self-regulation takes on a somewhat different
complexion.
It is the substance of the document that matters. One cannot decide on the
true effects and implications based on what is just the name. |
