Legalese explained
11/01/2005 The Star Articles of Law with Bhag Singh
Everyone is aware that there are laws that govern our daily lives. Yet
different words are used in stating them and these are words such as Acts,
By-Laws, Codes, Enactments, Ordinances, Rules and Regulations.
Wu Min Aun in his book An Introduction to the Malaysian Legal System says
that “People spend a major part of their lives without considering just
what it is and what they expect from the legal system. What is law is a
simple question but the response varies a great deal, depending on who is
being asked the question”.
Other writers have similarly discussed how the subject is understood and
have expressed different views sometimes even strange views and even in
paradoxical ways. In an English case Donaldson J once said :
“Without the rule of law and courts to enforce it, each one of us would be
free to push and bully our fellow citizens, and, which may be thought more
important, our fellow citizens would be free to push and bully us”.
Some of these words are used specifically to refer to laws made by the
Government. In particular words such as Act, Enactment and Ordinance are
use specifically in respect of laws made by the Government.
English laws were formally introduced some 20 years after the founding of
Penang. This was done through a Royal Charter of the Justice, the first of
which was granted in 1807. Subsequent Charters extended the application of
English Laws in Singapore and to Malacca.
The Charter of the Justice did not make laws but allowed for the
application of English Laws subject to local laws, customs and personal
laws continuing to apply to the locals. Thereafter the Civil Law Enactment
1937 provided for the introduction of English Law in the Federated Malay
States. When a Federal Legislature was constituted, albeit under British
rule, the legislation came to be referred to as Ordinances.
Eventually the subsequent versions of the earlier Civil Law Enactment were
called Ordinances. After Merdeka, with exceptions, all laws passed by
Parliament were referred to as Acts. Thus any law passed today by
Parliament is referred to as an Act.
However, the word Enactment and Ordinance continues to be used by the
different States in respect of laws passed by the State Legislative
Assembly and is today more reflective of State Legislation.
On the other hand, words and phrases such as By-Laws, Codes, Regulations
and Rules are more loosely and widely used. This is because they may on
occasions be made pursuant to an Act, Ordinance or Enactment.
Where this is the case such By-Laws, Codes Regulations or Rules are
referred to as Subsidiary Legislation. As an example, the Companies Act
1965 is supplemented by the Companies Regulations 1966 and Companies
Winding up Rules 1972. Here the rules are part of the law and
supplementary to the Act in terms of providing detailed procedures for
carrying out and implementing the provisions of the Act.
On the other hand, voluntary bodies, whether they are registered under the
Societies Act 1966, Corporative Societies Act 1993 or Companies Act 1965,
may also use words such as By-Laws Rules and Regulation to describe how
they are to be governed.
In such cases, the By-Laws, Rules or Regulation constitute a contract
between the parties involved in the organization.
Yet certain words such as Code are used in a context where it is actually
equivalent to an Act of Parliament. Thus with regards to land there is the
National Land Code 1965 which is an Act of Parliament. On the other hand,
the Malaysian Code of Advertising Practice is not a law but a
self-regulatory mechanism.
Where such a self regulatory Code exists it is actually an entrustment
that members of “group” or a “sector of an industry” agree to set up and
abide by such rules voluntarily.
Then there are in between situations as well. An example is the Content
Code under the Communications and Multimedia Act 1998. This is meant to be
a voluntary and self-regulatory industry code.
This is a code that has been prepared by those involved in the industry
and contains provisions which the industry feels should be followed. Its
operation is administered and supervised by the Content Forum, which is
also a voluntary body for purposes of self-regulation.
However, upon its being registered with the Malaysian Communications and
Multimedia Commission, the Commission could choose to impose as a term of
licensing that the Licence holder must comply with a part or the whole of
the Content Code.
At the end of the day, call it whatever you like – By-Law, Code, Rule or
Regulations – the real nature, effect and implications can only be
appreciated by looking at the actual document itself for what it really
means. |
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