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The laws of the land
23/01/2007 The Star Articles of
Law by BHAG SINGH
Whether what is provided for is legally binding or only a guide will depend
on the contents, the objective and who formulated it.
IN THE society that we live in, there is a plethora of laws and regulations
as well as restrictions and guidelines which govern the lives of individuals
and corporate entities. However, all these regulatory formulations can
sometimes be difficult for the layman to grasp. Of course, everyone knows
that laws, regulations and other enactments must be complied with.
However, the question that comes to the mind of the ordinary individual is
how all these are different when they are referred to by different names or
titles or the consequences that follow.
Some are called Acts, while others are called “regulations”. The words such
as “enactments,” “ordinances” and “codes” are also used. Some people say a
“code” is a law; others say it is not.
The word “Act” can be said to be the one word that clearly conveys the
meaning that it is a law passed by the Federal Parliament. Parliament is the
supreme body that makes laws for the country as a whole. Of course, it does
allow certain areas to be legislated on by the respective state legislative
assemblies.
However, whilst Parliament is the supreme law-making body, the Federal
Constitution is the apex legislation and supreme law of the land. Parliament
acts by this law, though Parliament also has the power to amend it by
following the procedures laid out in it.
The Federal Constitution is not usually referred to as an Act but as the
Constitution. However, the Constitution could be said to be an Act because
it has been adopted by Parliament and changed from time to time. Parliament,
in fact, has the power to change the whole of it. Whether this would be
considered an amendment or a replacement of the Constitution would be a
matter of terminology.
Beyond the Constitution, the basic laws that apply in the country are
contained in the Acts of Parliament. These Acts relate to civil and criminal
activities. Depending on their objective, they create rights and obligations
as well as impose punishment and provide for punishment where this is a
necessary consequence.
Such acts are supplemented by rules and regulations which are made by the
Minister. These are referred to as subsidiary legislation by reason of being
subordinate to the principal Act. Subsidiary legislation contains detailed
aspects relating to the implementation of the Act.
At the state level, the State Legislative Assembly also has the power to
make laws in the area or spheres reserved for them under the Federal
Constitution. The word “enactment” and on other occasions “ordinance” is
used in relation to them.
However, the words “enactment” or “ordinance” need not always mean that it
is state legislation. This is because some laws passed prior to Merdeka Day
have the word “ordinance” or “enactment” as part of the name. But this is,
of course, a somewhat diminishing group of laws.
For many people the word “code” seems to suggest that it is a set of rules
adopted by a body of persons or organisations to self-regulate their conduct
and actions.
Thus in Malaysia, the Malaysian Code of Advertising Practice under the aegis
of the Association of Accredited Advertising Agents, The Advertisers
Association and the Malaysian Newspaper Publishers Association, is an
example of such a “code”.
This “code” does not have the force of law like an Act but achieves its
objectives through compliance and cooperation by member organisations and
their members with the guidelines and principles that they themselves have
created.
But that is not all. There are some laws, both at the state and federal
level, with the word “code” as part of its name. The basic law relating to
land alienation and dealings is known as the National Land Code and is
therefore an example.
Then there is an overlapping of sorts on other occasions in the case of some
such documents. The content code which exists as a self-regulatory code
under the provisions of the Malaysian Communications and Multimedia Act 1998
is an example of this.
Though by its scheme it is a voluntary code, it is possible that in granting
licences or approvals the authorities may make it a condition that the code
must be complied with before granting such approval or licence.
When this happens the breach of the code may become a breach of the licence
condition or an offence under the Act. In such event the word voluntary as
used in a situation like this results in its meaning as ordinarily
understood being considerably diluted.
Then of course there are guidelines that need to be complied with. It all
depends on who puts forward these guidelines.
If such guidelines are formulated by industry bodies or an association of
people then they are more in the nature of contractual arrangements. At most
the consequences will be the sanctions by the body creating these rules.
However, if these guidelines are issued by a government department for the
purpose of obtaining approvals then the consequences may be that if the
guidelines are not complied with such approval may be denied.
In such a case the guidelines will be even more onerous as they would not
have had the benefit of being looked at in the way that laws are before they
are enacted or be open to judicial review as to their interpretation.
At the end of the day, it is apparent that the name or title used is merely
suggestive though in some cases more definitive as to what the nature of the
document is.
We need to look at the subject matter in its entirety before we are able to
know what is the effect and what are the consequences. |
