The definition of the criminal law, also termed as Penal law 1in a narrow sense can be defined as an act or omission prohibited by law because the matter would be injurious to the public. The essence of the criminal law is that when it was alleged that someone has committed the prohibited act which by mean the body rules must be established, using the criminal procedure designed to ensure the fairness to the accused2 whether he or she committed such an alleged act or cause the criminal offence and had no legally recognized excuse or justification for what he or she did. In other context, the accused will be liable to punishment by the state once the liability is established and the punishment which they will imposed to upon him or her will be manifold within the seriousness of the crime they committed.

In other words, criminal law also can be defined as the body of law which regulates the repression of crime, prohibition of specific conduct in which consists the view of the government, as expressed by the statute, intercede on the peace and good order of society to the extent that the proof of such conduct will engender towards criminal punishment upon the person who violates the rule and overstep the boundary which had been set up, in either a fine or a denial of liberty. 

Criminal law in a broader sense defines it as encompasses the rules and statutes which are written by the Congress and state legislators in dealing with any criminal activities that may cause harm to the general public, with penalties. It does also covers criminal procedure which connects with charging, trying, sentencing and imprisoning defendants who convicted to crimes which relates to the Penal Code itself. The procedure regulates how the suspects being investigated, charged and tried. In order for the defendant to be found guilty of violating the law, the prosecution must prove that the accused intended to act as he or she did. In other words, there should be intention (mens rea). Criminal law encompasses Substantive Criminal law, Criminal Procedure law and the special problems in administration and enforcement of criminal justice.

Based on Substantive Criminal law, it defines the crimes which committed against the state and may authorize punishment. 3It defines how the facts in the case could be handled within the classification of the crimes. For instance, the classification based on whether the crime is a felony or a misdemeanour. It also defines how the crime should be charged. Essentially, it deals with the “substance” of the matter itself. In determine which court will hear what cases and the person who will prosecute those case based on criminal statutes.

In regard of the Criminal Procedure law, it describes the methods through which the criminal laws are enforced. For instance, when would the accused can be searched, when can the evidence be seized and when does the eyewitnesses can be investigated. The procedure itself deals with an accused’s individual constitutional rights including the right to remain silent, the right to a speedy, the public trial by a jury, the right to a competent attorney and the defendant’s right to confront his or her accuser.

In the case under British Privy Council (Proprietary Articles Trade Assn. v. Canada)4, they mentioned that a criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the state in which by mean that the law signifies only by the offences which are prohibited under the Penal Code by the government itself. Thus, in R v Wilcox, the Nova Scotia Court of Appeal wrote, of criminal law that “The essence of criminal law is moral blameworthiness; the essence of regulation is that those engaging in-regulated activities maintain a certain minimum standard of care. Criminal offences reinforce crucial social values, the violation of which merits disapprobation and punishment.”

Next, the appropriate penal provisions for criminal matter is the Penal Code. The development of the Penal Code in Malaysia starting from 1871, where the Indian Law Commission (ILC) first drafted the Indian Penal Code and Lord Macaulay was the President of the Commission.  The draft of the Indian Penal Code was prepared by the First Law Commission which was chaired by Lord Macaulay himself. The basis of the Penal Code referred to the law of England that freed from superfluities, technicalities and local peculiarities. From the French Penal Code and the Livingstone’s Code of Louisiana, the suggestion derived and the draft underwent a very careful revision at the hands of Sir Barnes Peacock, the Chief Justice and the members of the Legislative Council which consists of the Judges of the Calcutta Supreme Court. The law was passed into law in 1860 but unfortunately Lord Macaulay died and did not have the chance to see his masterpiece enacted into a law. Then, the Indian Penal Code was submitted to the Governor-General of India in Council in 1837, but it does not took its place on the Indian Statute Book until 1860.

The Penal Code of Malaysia was once being recognized as The Penal Code of Straits Settlement (hereinafter mentioned as “SS Penal Code) which was passed by the Legislative Council of the Straits Settlement in 1871 and being in force on 16 September 1972. 5The Penal Code itself was applied to the Settlements of Penang, Malacca and Labuan. Hence, it continued to take effect until 1948.

In the year 1935, another Penal Code came into existence which is the Federated Malay States Penal Code (hereinafter mentioned as “FMS Cap 45”) which were mostly adopted based on the SS Penal Code and was applied to the Federated Malay States and Unfederated Malay States in separate enactments. Hence, the individual Penal Code enactment of each of these states was repealed.

Next, in 1948, right after the Federation of Malaya was formed which consists the Federated Malay States, Unfederated Malay States together with Penang and Malacca conjoined together as an independent administration. Meanwhile, the FMS Penal Code was extended throughout the new federation and the individual enactments of Unfederated Malay States and SS Penal Code were repealed. Consequently, the FMS Penal Code extended throughout Malaysia by the name of Penal Code (Amendment and Extension) Act 1976.6 Then, the Federation of Malaya merge with Singapore, Sabah and Sarawak in forming the Federation of Malaysia but Singapore later on separated from Malaysia in 1965. The Act was effectively extended to Sabah and Sarawak as it has been applicable to the States of Malaya. Therefore, it repealed the Penal Codes of these two states.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PART 2

1.     Discuss the development of the Constitutional Law in Malaysia.

The term ‘constitution’ can be referred as a set of rules which determine, identify and govern the duties, functions and powers of state institution (consists of the executive, legislature and judiciary) and the fundamental rights to be protected7. Based on scholars’ context of view, they explained that constitutional law is basically being set up as a framework in which other laws could ‘live, move and have their being’8. Hence, the principles of the constitutional itself are like the main idea which other laws do flow and derived their validity.

Now, based on its historical background, the Constitution embodies British and Indian constitutional concepts. They do also insert certain traditional Malay elements as a part of the Constitution. Even though most of the content are based on the Indian Constitution, unlike the recent, the Malaysia Constitution is not an unwritten constitution which hammered out by a constitutional assembly which comprising representatives of the people9. It has been developed from an earlier constitution which was drafted by a commission of foreign experts in constitutional law but then, the evolution of the constitution was done uniquely by Malaysians.

The Malaysian Constitution has been evolved from events of the past years, right before Malaysia gain its independence. The origin concept of the federation came during the establishment of the Federated Malay States (FMS) in 1895. The present constitution grew out of the Federation of Malaya Constitution of 1957 (the Merdeka or Independence Constitution) which, in turn, grew out of the Federation of Malaya Agreement 1948 (FMA 1948) which came out from the basis of the Federated Malay States Agreement 1895 (FMS 1895).

Right after that, the British was defeated by the Japanese but they surrendered in 1945 and the British administration was resumed. The British realized that radical reform was necessary. In order to achieve that particular state of success, the administration proposed a creation which may bought of having equal rights towards every citizen in the nation regarding on their broad-based citizenship, which is the Malayan Union administration10. To obtain an acceptance towards the idea regarding on the establishment of the Malayan Union, the British Government sent Sir Harold MacMichael to Malaya to acquire the cooperation of every Malay State Rulers. The latter were then compelled to conclude in 1945 to the so-called MacMichael Treaties whereby it was agreed that the British should have an obligatory regarding on full power and jurisdiction within each of Malay states.

The Straits Settlement were then dissolved as Penang and Melaka were grouped together with the Malay states to form the Malayan Union on 1 April 1946. For economic and political reasons, Singapore was left out and became a Crown Colony. Regardless of the complication they had during administrating the Malayan Union which was lasted only two (2) years, it was taken down since the Malays strongly opposites after they realized that the MacMichael Treaties reduced the status of the Malay states to that of a colony and deprived the Malay Rulers of their sovereignty.

Due to the opposition, it forced the British to withhold bringing into force all the provisions of the MU Order-in-Council 1946, which created the Malayan Union. In July 1946, the Working Committee of twelve was appointed under the chairmanship of Sir Malcolm MacDonald, the first Governor General of Malayan Union, to work out detailed arrangements which would form the basis of future constitutional developments11. The committee, along side with the representatives of the Malay rulers and the United Malays National Organization (UMNO) do discuss regarding on the proposals which has been made and consultations with the representatives of the non-Malays, produced a scheme for a federation acceptable to all concerned.

The establishment of the Constitution of the Persekutuan Tanah Melayu (Federation of Malaya) were based on what the British Government and the Malay Rulers conclude from the Federation of Malaya Agreement 1948 (FMA 1948).12 Each of the Malay Rulers and the British Government concluded separate agreements providing for the government of each states in accordance with a written constitution (except for Johor and Terengganu as they had written constitutions) and the FMA 1948.

A Federal Government was set up in Kuala Lumpur which comprised all the territories of the previous Malayan Union except for Singapore which remained as a separate Crown Colony. The government assembled by a British High Commissioner which sets up the main organs that consists an Executive Council and a Legislative Council in which all races were represented. In a same time, the Malay Rulers became members of the Majlis Raja-Raja Negeri Melayu (Conference of Rulers) which would usually meet at least three times a year. Any amendment of the constitution or regarding the immigration laws and for appointments of senior government officials must require the approval from the Majlis. The Malays were recognized as the indigenous people, and their special position was guaranteed.

The FMA 1948 sets a pattern for a federation with a strong central government. The federation created by the FMA 1948 was intended to be an interim arrangement. In 1955, the first federal elections were held for fifty-two (52) seats and its leader, Tunku Abdul Rahman became the Chief Minister. Six months later, Tunku Abdul Rahman led a Malayan delegation to London to negotiate for Tanah Melayu’s independence, The London Conference that lasted for three (3) weeks in the early year 1956 and they appointed an independent constitutional commission to draw up a constitution providing for full self-government and independence for the Federation of Malaya by August 195713.

The constitutional commission was headed by Lord Reid, a Lord of Appeal in Ordinary. The Reid Commission comprised a constitutional law expert from each of the following countries, the United Kingdom, Australia, India and Pakistan. Basically, the Reid Commission’s terms of reference were to examine the existing constitutional arrangements throughout the federation and to recommend a federal form of constitution for the whole country, based in parliamentary democracy with a bicameral legislature. Then, the commission itself collected data and memoranda from June to October 1956. The Reid Commission Report, which contains recommendations and a draft constitution, was submitted to the British Government and the Malay Rulers on 21 February 195714. The drafted constitution prepared by the Reid Commission was reviewed and amended, in substance and in form. Nonetheless, the draft itself was the basis for the constitution of the Federation of Malaya which proclaimed its independence on 31 August 1957. The Reid Commission proposal were given effect by the Federation of Malaya Independence Act 1957 and Order-in-Council made thereunder. In the federation, it was effected by the Federation of Malaya Agreement (FMA) 1957, containing its schedules towards the Federal Constitution and the Constitutions of Penang and Melaka, the Federal Constitution Ordinance 1957 (No 55 of 1957), and State Enactments in the Malay states.

In 9 July 1963, the Federation of Malaya, the United Kingdom, North Borneo, Sarawak and Singapore Governments signed the Malaysia Agreement in London. The parliament passed the Malaysia Act 1963 (No 26 of 1963) to give effect to that agreement in the federation. That particular Act effected amendments to the Merdeka Constitution. These changes had raised comments that they really brought about a new constitution for a new federation. The principle of equality of states essentially underlying the Merdeka Constitution was sacrificed to accommodate the special interests of the newly incorporated states although in the actual reality, the new constitution did not bring the new states into association with the former federation itself, such that new federation really comprised four units which are the Federation of Malaya, Sabah, Sarawak and Singapore.

In 7 August 1965, the Separation of Singapore Agreement was signed right away and Singapore was expelled due to a worsening relations and mounting tensions drove Tunku Abdul Rahman to a drastic action15. Right then, the Malaysian Parliament passed the Constitution and Malaysia (Singapore Amendment) Act 1965 (No 53 of 1965), which came into force on 9 August 1965. Consequent amendments had been made to the Federal Constitution (which could not be implemented by that Act as Parliament was

not given time to pass a comprehensive Bill) later effected by the Constitution (Amendment) Act 1966 (No 59 of 1966)16.

1 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p. 1

2 Abdul Rani Kamaruddin, Dr (no date). Pre-Trial Process in Criminal Proceedings: ILBS. p.55

3 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p. 2, p.3.

4 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p.3

5 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p.4

6 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p.6

7 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p.211

8 Hasbollah Bin Mat Saad (2016). Criminal and Constitution Law In Malaysia: A Comparative Approach: Melaka: Pena Hijrah Resources. p.211

 

9 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 30

10 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 32

11 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 32

12 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 32

13 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 33

14 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 34

15 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 39

16 Wan Arfah Hamzah (2009). A First Look at the Malaysian Legal System: Petaling Jaya: Oxford Fajar Sdn. Bhd. p. 37