Friday, May 2, 2008



How does a Treaty stand in relation to Federal Constitution?

Treaty is formal/legally binding an agreement between sovereign states/organizations of states . Article 38 (1) of the statute of the international Court of Justice lists Treaty as one of the important sources which that court is permitted to use with certain exception.

Can a Malaysian Court declare a Treaty Unconstitutional?

Although, the Federal Constitution contains no doctrine of incorporation certain provision of the federal constitution do expressly relate to international law. Thus the power to make law involving certain aspect of international law are clearly enumerated in Articles 74(1), 76(1), 76(2) and 169 of Federal Constitution.

Article 74(1) provides that Parliament may make law with respect to any of the matters enumerated in the federal list which consists of external affairs.

Article 76(1)(a) Parliament may make laws in respect to any matter enumerated in the state list but only for the purpose of implementing any treaty agreement or convention between the federation and any other country.

Article 76(2) restricts the provision of Article 76(1)(a) by stipulating that no law shall be made in pursuance thereof with respect to any matters of Muslim law or the custom of the Malays or to any matters of native law or custom in the Borneo state without the concern of the state government in consulted.

Article 169 deals specifically with international agreements, treaties and convention made before the Independent day.

Yes, Malaysian court can declare a treaty as unconstitutional because the implementation of the treaties is dependant upon the legal system of each individual party to the treaties. However, it is the duty of all parties to a treaty to see that municipal law gives effect to treaties concluded by the nation in question. If a party fails to make the treaty enforceable within its jurisdiction a breach of international law ensues.

According to article 128 of Federal Constitution of Malaysia prescribe the jurisdiction of a Federal Court to determine the validity of laws makes by Legislature body. In the case of The Government of the state of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj where kelantan challenged the constitutionality of the Malaysia Agreement and the Malaysia Act. The Malaysia agreement was an international agreement signed by the United Kingdom, The Federation of Malaya, Singapore, Sabah and Sarawak; the Malaysia Act was enacted by the Federation of Malaya to implement that agreement. Kelantan’s arguments, essentially, were that the consent of the individual states of the Federation of Malaya should have been obtained before the arrangements of for Malaysia could be lawfully implemented. The court was held that the requirement in such a case is consultation and not consent of the states.

How does a Treaty come to an end?

Treaty come to an end by the way Termination.

(1) Termination by execution
Termination by execution occur when a treaty designed to achieve a particular object and that object is achieved.

(2) Termination by Agreement
A treaty may contain an express provision to the effect that if all or a certain number of the parties agree, the treaty maybe considered as terminated. If there is no such clause, termination, in such a case, is legal only if all the parties agree. The agreement, however, need not necessarily affect all the parties as it may provide for the withdrawal of only those which wish to do so. Sometimes, a subsequent agreement may abrogate a previous treaty.

(3) Termination by Denunciation
If a treaty contains an express denunciation clause, it may terminate in accordance with its terms. However, treaties do not usually have such clauses and though states may claim the right to withdraw from treaties, international tribunals usually take the view that such denunciations are unlawful.

(4) Termination by Extinction of a party
This happen when a party to a treaty ceases to exist or loses its international personality.

(5) Termination by Operation of the Rebus Sic Stantibus Doctrine
Whenever the state of things which was essential to the treaty has either ceased to exist or has undergone material change, the treaty is deemed to determine. However, this so-called Rebus Sic Stantibus Doctrine cannot be applied simply because new circumstances make the obligation to perform more burdensome or inequitable. Whereby the Vienna Convention on the law of treaties provides the condition for the application of the doctrine which stated under article 62 (1), (2) & (3).

(6) Termination by subject matters
A treaty may come to end by the reason of natural disasters/disorders for example earthquake; where the parties to that treaty may terminate the treaties agreement.

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