JUDICIAL APPLICATION OF INTERNATIONAL LAW IN MALAYSIA: AN ANALYSIS1
Abdul Ghafur Hamid @ Khin Maung Sein2
During the colonial time, the application of international law by courts in Malaysia was the same as the practice of the British courts: doctrine of transformation in respect of international treaties and doctrine of incorporation with certain limitations in respect of customary international law. However, the judicialapplication of international law after independence has not been the subject of any in–depth research. How international law is operative before the Malaysian courts? Do they apply international law at all? Or do they treat international law as an alien law? The present paper tries to answer these questions in the light of leading Malaysian cases. The paper concludes that although the Malaysian courts apply international treaties as part of the Malaysian law so long as they have been transformed into domestic law by means of an act of Parliament, the application of customary international law by the Malaysian courts is not so consistent and that a clear–cut policy is required to have a consistent and justifiable judicial practice.
In theoretical terms, the application of international law in national legal systems is often explained in terms of the doctrines of incorporation and transformation. According to the ‘doctrine of incorporation’, international law is regarded as automatically incorporated in municipal law. In other words, international law is ipso facto part of municipal law and may be applied as such by the municipal courts. The ‘doctrine of transformation’, on the other hand, indicates that international law is not ipso facto part of municipal law. A rule of international law will become part of municipal law only after the transformation of it into municipal law by means of a statute or an Act of parliament.
It is often said that the doctrines of incorporation and transformation correspond with ‘monism’ and ‘dualism’ respectively. It means that according to monism, international law and municipal law are part of the same legal order and this is reflected by the fact that international law is automatically incorporated into municipal law. Conversely, under dualism, international law and municipal law are two separate systems of law operating in its own area of competence. This is the same thing as saying that rules of international law can operate in a national legal system only if they are deliberately transformed into it by means of a parliamentary enactment.3
During the colonial time, the practice of courts in Malaysia was generally the same as that of the British courts, namely: the doctrine of transformation in respect of treaties4 and the doctrine of incorporation with certain limitations in respect of customary international law.5 The main focus of the present study is the practice of the Malaysian courts after independence. Is the practice of the Malaysian courts after independence the same as that under the British? Do they apply international law at all? Or do they treat international law as an alien law? As there are two main sources of international law, the above questions are to be answered on the basis of the practice of the Malaysian courts in respect of treaties and the same in respect of customary international law.
2. APPLICATION OF INTERNATIONAL TREATIES
The Federal Constitution of Malaysia6, unlike the constitutions of some other States7, does not contain any provision which says that international law shall be deemed part of the law of the land or that treaties shall be the laws of Malaysia. Nevertheless, certain provisions of the Constitution deal with ‘treaty–making capacity’ in Malaysia.
According to Article 74(1) of the Federal Constitution, “Parliament may make laws with respect to any of the matters enumerated in the ‘Federal List’ or the ‘Concurrent List’”. The ‘Federal List’ in the Ninth Schedule includes:
1. External Affairs, including –
(a) Treaties, agreements and conventions with other countries and all matters which bring the Federation into relations with other countries;
(b) Implementation of treaties, agreements and conventions with other countries;…
We can conclude from the wordings of Articles 74, read together with the Federal List, that the Federal Parliament has the exclusive power to make laws relating to external affairs (including treaties, agreements and conventions) and that it has the power to implement international treaties and make them operative domestically.
In respect of the power of the Executive, Article 39 provides that:
The executive authority of the Federation shall be vested in the Yang di–Pertuan Agong and exercisable…by him or by the Cabinet or any Minister authorised by the Cabinet.
Again under Article 80(1), the executive authority of the Federation extends to all matters with respect to which Parliament may make laws.8 By virtue of the ‘Federal List’, matters with respective to which Parliament may make laws include “external affairs” which in turn include “treaties, agreements and conventions with other countries”. Therefore, the executive authority of the Federation extends to the making or conclusion of treaties, agreements and conventions with other countries. The conclusion then is that in Malaysia the treaty–making power is vested in the executive authority of the Federation or the Federal Government.9
This has been reaffirmed by the case of the Government of the State of Kelantan v the Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al–Haj10. In this case, Kelantan challenged the constitutionality of the Malaysia Agreement, which was an international treaty signed by the United Kingdom, the Federation of Malaya, Singapore, Sabah and Sarawak. The main argument made by the Kelantan Government was that the consent of the individual States of the Federation of Malaya should have been obtained before the arrangements for Malaysia can be lawfully implemented. Referring to Articles 39 and 80 (1) of the Federal Constitution, the Court affirms the constitutionality of the Malaysia Agreement as follows:
The Malaysia Agreement is signed ‘for the Federation of Malaya’ by the Prime Minister, the Deputy Prime Minister and four other members of the Cabinet. There is nothing whatsoever in the Constitution requiring consultation with any State Government or the Ruler of any State.
An analysis of the constitutional provisions indicates that in Malaysia, like in the United Kingdom11, the Executive possesses the treaty–making capacity while the power to give legal effect domestically to treaties rests in Parliament. A treaty to be operative in Malaysia, therefore, needs legislation by Parliament. Perhaps there are treaties that can be implemented locally without any necessity for the introduction of a statute.12 Nevertheless, treaties that affect the rights of private persons or involve changes in municipal law definitely require legislation.
The conclusion then is that as far as treaties are concerned, the Malaysian practice is based on the ‘doctrine of transformation’. Even though the Government (Executive) has ratified a treaty and the treaty binds the Government under international law, it has no legal effect domestically unless the Legislature passes a law to give legal effect to that treaty.13 The following are a few examples of statutes made by Parliament to give legal effect to treaties concluded by Malaysia:
The Geneva Conventions Act, 1962, as revised in 1993, to give legal effect to the Four Geneva Conventions for the Protection of the Victims of War of 1949;
The Diplomatic Privileges (Vienna Convention) Act 1966, as amended in 1999, to give legal effect to the Vienna Convention on Diplomatic Relations 1961;
The Carriage by Air Act, 1974, to give legal effect to the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955 and the Guadalajara Convention of 1961;
The Exclusive Economic Zone Act, 1984, to give legal effect to certain provisions of the United Nations Convention on the Law of the Sea 1982.
The International Organisations (Privileges and Immunities) Act 1992, to give legal effect to the Convention on the Privileges and Immunities of the United Nations 1946.
The Consular Relations (Privileges and Immunities) Act 1999, to give legal effect to the Vienna Convention on Consular Relations 1963.
In Public Prosecutor v Orhan Olmez14, the First Secretary to the Embassy of Turkey gave evidence in the magistrate’s court in Kuala Lumpur. His attendance was preceded by a diplomatic note from his embassy clearly stating that he would be present during the hearing of the proceeding ‘in his capacity as consul’ and ‘solely for the authentication of legal documents’. However, the Embassy subsequently sent another diplomatic note to the Ministry of Foreign Affairs to say that the First Secretary would not be attending court any more. Counsel for the respondent applied to the court to issue a warrant of arrest to compel the attendance of the First Secretary. The legal question of ‘whether or not the act of sending State allowing the diplomatic agent to give evidence solely for authentication of the legal documents constitutes a waiver of immunity from jurisdiction’ was brought to the Supreme Court of Malaysia. Applying Article 32 of the Vienna Convention on the Diplomatic Relations 1961, which has been transformed into Malaysian law by means of the Diplomatic Privileges (Vienna Convention) Act 196615, the Court held that:
a waiver under the Vienna Convention must always be express. The restrictive language in the first diplomatic communication is clear and it cannot be construed as anything like a waiver of immunity.
Another example of the application of international treaties by the Malaysian courts through a statute made by Parliament is the case of Regional Centre for Arbitration v Ooi Beng Choo & Anor.(No. 2)16. In this case, the court referred to a subsidiary legislation known as the Kuala Lumpur Regional Centre for Arbitration (Privileges and Immunities) Regulations 1996 made pursuant to Sections 3 and 4 of the International Organisations (Privileges and Immunities) Act 1992, which was passed by Parliament to implement the Convention on the Privileges and Immunities of the United Nations, 1946, to which Malaysia is a party.
Again in MBF Capital Bhd. & Anor v Dato’ Param Cumaraswamy17, the High Court of Malaya applied the International Organisations (Privileges and Immunities) Act 1992 in a case involving immunity of a Special Rapporteur of the UN Human Rights Commission. The case is discussed in greater detail in a later section.
3. APPLICATION OF CUSTOMARY INTERNATIONAL LAW
There is no reason why Malaysia should not apply an established rule of customary international law. Malaysia is a member of the international community and not an isolated State, staying aloof and alien, without any relations with other countries. It is a State actively involved in international relations and is an emerging economy, trading with a number of other countries, and striving to become a developed country in the year 2020. Relations between States are conducted through various rules of customary international law (apart from treaties to which these States are parties). Without recognising these rules of customary international law, no State can enter into relations with other States. It is therefore submitted that firmly established rules of customary international law accepted by almost all States of the world should be regarded as part and parcel of the Malaysian law to the extent that they are not contrary to the Malaysian statutes and public policy of Malaysia.
In fact, the legal effect of customary international law is entirely different from that of a treaty. A treaty is binding only on States parties to it. Non–parties are not bound by a treaty law. A rule of customary international law, however, is binding on all States except a persistent objector.18 So long as Malaysia has not persistently objected to a rule of customary international law, that rule is binding on Malaysia. Therefore if, for example, a Malaysian court did not recognise an established rule of customary international law and decided a case contrary to it on the ground that there was no local statute to give legal effect to it, Malaysia, as a State, would be responsible under international law for violation of a rule of customary international law.
Nevertheless, the crucial question here is: Will Malaysian courts apply customary international law in the absence of any statutory authority, which requires them to do so? The answer clearly is in the negative. Therefore, it is imperative for us to look for a statutory authority. It appears that the most probable authority is section 3 (1) of the Civil Law Act 1956, which provides as follows:
Save in so far as other provision has been made or may hereafter be made by any written law in force in the Federation or any part thereof, the Court shall apply the common law of England and the rules of equity as administered in England at the date of the coming into force of this Act; Provided always that the said common law and rules of equity shall be applied so far only as the circumstances of the States and Settlements comprised in the Federation and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.
We have seen earlier that the ‘doctrine of incorporation’ is the main British approach in respect of customary international law. Customary international law is deemed to be part of English common law in so far as it is not in conflict with a statute or a judicial decision of final authority.19 According to section 3 (1) of the Civil Law Act, English common law is to be applied by the Malaysian courts in the absence of any written law (i.e. statutes) and provided that it is not contrary to public policy of Malaysia. The logical consequence is that by virtue of section 3 (1) of the Civil Law Act, customary international law, as applied in the UK as part and parcel of the common law20, is applicable in Malaysia, to the extent that it is not contrary to the Malaysian statutes and public policy of Malaysia.
In practice, the courts in Malaysia appear to have applied customary international law when the occasion arose21 although the application is not direct but through the medium of English common law. In other words, Malaysian courts apply customary international law as part and parcel of common law.
For example, the rule of customary international law relating to the immunity of a sovereign State from judicial process of a foreign country has been applied in the case of Olofsen v Government of Malaysia22 where it was held that as Malaysia had become a sovereign State as from August 9, 1965, the Court had no jurisdiction to entertain any action or other proceeding against the Government.
In PP v Oie Hee Koi23, the accused were captured during the Indonesian confrontation campaign against Malaysia. The Federal Court allowed the appeals of the accused on the ground that they were prisoners of war and entitled to the protection of the 1949 Geneva Conventions. On appeal, the Privy Council held that they were not entitled to be treated as prisoners of war. Although the main issue was concerned with the interpretation of the Geneva Conventions of 1949, the Privy Council stated that the position of the accused was covered prima facie by customary international law.
However, a somewhat reluctance by a Malaysian court of applying a rule of customary international law can be found in the decision of PP v Narogne Sookpavit24. In this case, the respondents were Thai fishermen. They were on a vessel which was then at sea about three miles from the Malaysian coast. They were arrested and were charged under section 11 (1) of the Fisheries Act 1963. The trial court acquitted all the accused. The prosecutor filed an appeal. One of the arguments made by the respondents was based on the ‘right of innocent passage’. Referring to Article 14 (which deals with the right of innocent passage) of the 1958 Geneva Convention on the Territorial Sea, Shanker J stated:
The customary law to which Article 14 of the Convention on the Territorial Sea is said to correspond may be the customary law of England or it may be customary international law. In the Court below me, Defence Counsel seemed to suggest that it was self–evident that such customary law was part and parcel of Malaysian law. I am far from satisfied that this is the case... Section 13 and 14 of the Evidence Act 1950 require evidence to be given of a custom before the Court can reach a positive conclusion as to its existence… No such evidence was led in the Court below.
…So before a convention can come into force in Malaysia, Parliament must enact a law to that effect. The carriage by Air Act is one such example and the importation of the Geneva Convention on the Territorial Sea 1958 by the Emergency (Essential Powers) Ordinance No. 7 of 1969 is another.25 No Malaysian statute has been cited to me to show that Article 14 had become part of Malaysian law. In fact the Ordinance just cited stops at Article 1326 and irresistible inference must be that article 14 was not intended to be imported into this country.
The learned judge finally concluded that:
The material before the court in this case was inadequate to come to any positive conclusion as to whether innocent passage through Malaysian territorial water is a right27 and if so what were its precise limits.
Even if there was such a right of innocent passage and such right was in conformity with customary English law or customary international law as it is applied in England, the passage by the accused persons in the circumstances of this case could not be regarded as innocent passage since it contravened Malaysian domestic legislation.
There is no doubt as to the correctness of the judgment to the extent that the passage was not innocent since it violated fisheries laws of Malaysia. However, it is very much unfortunate that the learned judge outrightly rejected the validity of customary international law right of innocent passage. The right of innocent passage is in fact an established rule of customary international law28, accepted by almost all States of the world including Malaysia. In practice, Malaysia (i.e. the executive authorities such as navy, police, immigration, and customs) as a rule allows innocent passage to foreign ships though the territorial sea of Malaysia. Likewise, the Malaysian ships also enjoy the right of innocent passage through the territorial seas of other countries. The right is reciprocal.
Although the learned judge disregarded customary international law in this case, it was ironical enough that the same judge relied on a rule of common law, which was based on customary international law, in a later case just mentioned below.
In Village Holdings Sdn, Bhd v Her Majesty the Queen in Right of Canada29, Shankar J. held that
So far as a foreign sovereign is concerned, I hold that section 3 of our Civil Law Act 1956 leaves no room for any doubt that we in Malaysia continue to adhere to a pure absolute doctrine of State immunity when it comes to the question of impleading a foreign sovereign who declines to submit.
This case clearly demonstrates the fact that the learned judge relied on English common law position which was declaratory of customary international law principle of absolute immunity.
A fundamental change of the law relating to State immunity has taken place in Malaysia as a result of a landmark decision of the Supreme Court of Malaysia in Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd30. The main issue in this case was whether Australia was entitled to immunity in respect of the seizure of property by its Customs Officers. The following is the decision of the Supreme Court, delivered by Gunn Chit Tuan SCJ31:
Section 3 of the Civil Law Act only requires any Court in West Malaysia to apply the common law and the rules of equity as administered in England on the 7th day of April 1956. That does not mean that the common law and rules of equity as applied in this country must remain static and do not develop…. It is correct, as pointed out, that the law in England on sovereign immunity on 7 April 1956, was as declared in cases such as The Parlement Belge. That is, at that time a foreign sovereign could not be sued in personam in our courts. But when the judgment in The Philippine Admiral was delivered by the Privy Council in November 1975, it was binding authority in so far as our courts are concerned…. When the Trendtex case was decided by the United Kingdom Court of Appeal in 1977 it was of course for us only a persuasive authority, but we see no reason why our courts ought not to agree with that decision… That is more so in view of the very strong persuasive authority in I Congreso case in which the House of Lords had… unanimously held that the restrictive doctrine applied at common law… We are therefore of the view that the restrictive doctrine should apply here although the common law position of this country could well be superseded and changed by an Act of Parliament later on should our legislature decide to define and embody in a statute the limits and extent of sovereign immunity in this country.
The bold ruling of the Supreme Court of Malaysia is to be warmly welcomed as it affirms the application in Malaysia of the restrictive theory of State immunity, which is the modern and prevailing doctrine, and paves the way for the progressive development of common law without sticking to the cut–out date of 1956.
4. POSSIBLE CONFLICT BETWEEN INTERNATIONAL LAW AND MALAYSIAN MUNICIPAL LAW
In Malaysia, the constitution is silent as to the primacy of international law over municipal law or vice versa. There is, therefore, a possibility of a conflict between a statute and a rule of international law. If there is such a conflict, the general rule is that the statute shall prevail. P.P. v Wah Ah Jee32 is illustrative of the point. The learned judge in this case stated
the Courts here must take the law as they find it expressed in the Enactments. It is not the duty of a Judge or Magistrate to consider whether the law so set forth is contrary to international law or not.
It is quite obvious that PP v Wah Ah Jee followed the dictum in the English case of Mortensen v Peters33, where it was held that:
In this court we have nothing to do with the question of whether the legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms…
This idea is based on the common law principle of the ‘supremacy of an Act of Parliament’ although there is a prima facie presumption that Parliament does not intend to legislate in breach of international law.34 Sometimes, the statute itself might provide for the avoidance of conflict. The statute may expressly give primacy to the international obligation.35 In any case, as a general rule, the court will upheld the statute made by the Parliament. Nevertheless, if the statute is in conflict with a rule of international law, the State will, on the international scene, incur liability for a breach of an international obligation.
5. STATE RESPONSIBILITY FOR A BREACH OF INTERNATIONAL LAW
Although the national courts of a State, on the ground of independence of judiciary, may disregard international law and make a decision which is contrary to international law, the State has, on the international plane, to bear the responsibility for the breach. Furthermore, there is a fundamental principle of international law that:
a State cannot plead a rule of or a gap in its own municipal law as a defence to a claim based on a violation of its international law obligation.36
Article 27 of the Vienna Convention on the Law of Treaties 1969 reaffirms this principle in these terms:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
A breach of international law by a State entails international responsibility of that State.37 International courts and tribunals have repeatedly affirmed this principle.38 In the Rainbow Warrior case, for example, the Arbitral Tribunal stressed that:
any violation by a State of any obligation, of whatever origin, gives rise to State responsibility.39
A recent Malaysian case illustrative of the point is MBF Capital Bhd. & Anor v Dato’ Param Cumaraswamy40. The facts of the case are the following. Dato’ Cumaraswamy, a Malaysian jurist, was appointed in 1994 by the United Nations Commission on Human Rights as the Commission’s Special Rapporteur on the Independence of Judges and Lawyers.41 As a result of an article published on the basis of an interview which the Special Rapporteur gave to a magazine (International Commercial Litigation)42, some companies in Malaysia filed multi–million dollar defamation suits against him.43 The MBF case is one of these defamation cases.
The Special Rapporteur claimed immunity, invoking section 22 (b)44, Article VI of the Convention on the Privileges and Immunities of the United Nations, 1946, to which Malaysia is a party. A certificate was issued by the Secretary General of the United Nations, determining that the words which constituted the basis of the plaintiff’s complaint were spoken by Dato’ Cumaraswamy in the course of his mission as a Special Rapporteur, and maintaining that he was entitled to the immunities accorded to experts performing missions of the United Nations. The Minister of Foreign Affairs of Malaysia had also issued a certificate under section 7 of the International Organisation (Privileges and Immunities) Act 1992, endorsing his status and mandates as a Special rapporteur, but without referring in any way to the Secretary General’s certificate and the status in international law of the Secretary General’s determination as to the entitlement of immunity of an officer or an expert on mission of the United Nations.
The learned judicial commissioner ruled, inter alia: (1) that the Certificates as issued by the Secretary–General and the Minister had no more probative value than a mere opinion and in the event decided to disregard them; and (2) the issue of immunity was a matter that was not capable of decision in a summary manner, and so directed that the issue be determined at the trial of the action. The Court of Appeal upheld this decision.45
In the meantime, the Government of Malaysia and the United Nations by consent agreed to refer this question of the Special Rapporteur’s immunity, for an advisory opinion to the international Court of Justice pursuant to section 30 of the Convention.46 On the basis of a Motion filed by the Special Rapporteur on 1 October 1998, the Court of Appeal gave an order for a stay of execution, pending the receipt of the advisory opinion of the International Court of Justice.
The International Court of Justice gave its advisory opinion regarding Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights47 on 29 April 1999. The Court concluded, inter alia: (1) that Dato’ Param Cumaraswamy was entitled to immunity from legal process of every kind for the words spoken by him during an interview as published in an article in International Commercial Litigation48; and (2) that the Government of Malaysia had the obligation to inform the Malaysian courts of the findings of the Secretary General that Cumaraswamy was entitled to immunity from legal process49.
The aftermath of the Advisory Opinion of the International Court of justice could be seen in Insas Bhd & Anor v Dato’ Param Cumaraswamy50 where the High Court finally ruled that:
whilst the court might disagree with certain aspects of the decision of the ICJ, the decisive acceptance of the ICJ’s ruling by the parties will prevail in respect of this case because the parties had specifically agreed to refer this case for an advisory opinion from the ICJ and that the court was bound to give legal effect to the advisory opinion.
An in–depth analysis of the Param Cumaraswamy case reveals the fact that the popular criticism alleging that the Malaysian courts disregarded international law in this case is not true. On the contrary, the Malaysian courts relied on the International Organisations (Privileges and Immunities) Act 1992, which was passed to give legal effect to the Convention on the Privileges and Immunities of the United Nations, 1946, and decided that Cumaraswami would be entitled to immunity only if he had spoken the words in his capacity as a Special Rapporteur, that the Secretary General had no power to make a conclusive decision51 as to whether he had acted so, and that it was an issue to be determined by the Malaysian courts at the trial stage. In fact, the Malaysian courts applied the Convention through the enabling statute. The only problem was that the interpretation of the law by the Malaysian courts in this respect was different from that of the International Court of Justice. The International Court of Justice decided that:
the finding of the Secretary General creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts.52
In any case, it is commendable that the Malaysian courts gave binding effect to the Advisory Opinion of the International Court of Justice. It demonstrates the wisdom and maturity of the judicial branch of Malaysia in a delicate situation involving a difficult issue of international law.
An analysis of the Malaysian cases involving issues of international law in one way or another demonstrates convincingly that the Malaysian courts have applied international treaties to which Malaysia is a party provided that the treaty concerned has been transformed into the Malaysian law by means of a statute made by Parliament. This is the application of the doctrine of transformation and is generally in accord with the practice of most of the common law jurisdictions. We can, therefore, conclude that Malaysia is a dualist State as far as international treaties are concerned.
Nevertheless, it is necessary here to stress the need for co–ordination and co–operation among the three organs of the State, namely: the Judiciary, the Executive, and the Legislature (Parliament), to the extent that they speak in one voice in matters involving international law. Out of the three organs, the Executive appears to have a pivotal role due to the fact that according to the Malaysian constitutional law, it possesses treaty–making power and also has the power to submit Bills (draft statutes) to Parliament. Whenever a treaty, which affects the rights of the Malaysians or requires a change in Malaysian domestic law, has been ratified or acceded to, the Executive must make every effort to prepare without delay a draft enabling statute and submit it to Parliament. Only in this way can the Malaysian courts apply international treaties and conventions effectively through enabling statutes.
In the case of customary international law, the practice of the Malaysian courts can be said as not so consistent. In one case, the learned judge failed to honour an established rule of customary international law on the ground that there is no statute to be followed. This is clearly the dualist approach. In other cases, the Malaysian courts have applied relevant rules of customary international law but only through the medium of English common law.
It is, therefore, submitted that as far as customary international law is concerned, a consistent judicial practice need to be developed. International law actually is not an alien law or a foreign law. To comply with international law is in the interest of all States, especially for the economic development of an emerging economy like Malaysia, in the present era of interdependence and globalisation. Universally accepted rules of customary international law should be treated as automatically incorporated into the local law of Malaysia in so far as they are not contrary to local statutes and public policy of Malaysia. There is also no reason why Malaysian courts should not develop the ‘common law’ of its own, rather than merely relying on English common law for the application of customary international law.
1 This is the revised version of a research paper presented at the Second Asian Law Institute (ASLI) Conference, Faculty of Law, Chulalongkorn University, Bangkok, Thailand, held on 26–27 May 2005.
2 LL.B., LL.M. in International Law (Yangon), Ph.D. (IIUM), Associate Professor, Ahmad Ibrahim Kulliyyah (Faculty) of Laws, International Islamic University Malaysia.
3 The present paper does not intend to provide another contribution to the exhausted debate over “monism” and “dualism” as theoretical models for construing relationships between international law and municipal law. See further on monism and dualism, Oppenheim’s International Law, Lauterpacht (ed.), vol. 1, Peace, (8th. ed., 1955), 37; see also Brownlie, Ian, Principles of Public International Law, (5th.ed., 1998), pp. 42–43.
4 For the practice of British courts in respect of treaties, see The Parlement Belge (1878–79) 4 P.D. 129 Probate and Admiralty Division, (1880) 5 P.D. 197, Court of Appeal; Maclaine Watson v Department of Trade and Industry 3 All E R, 523,  2 A C 418 House of Lords.
5 See Blackstone’s Commentary on the Law of England, vol iv, Chapt. V, p. 55; Triquet v Bath (1746) 3 Burr. 1478. Court of King’s Bench; Buvot v Barbuit , Ed. (1737) Cases t. Talb. 281; West Rand Central Gold mining Co. v R  2 KB 391; Chung Chi Cheung v R  AC 160 (Privy Council); Trendtex Trading Corp. v Central Bank of Nigeria  QB 429.
6 Federal Constitution of Malaysia, International Law Book Services, Kuala Lumpur.
7 For example, Article 25 of the German Constitution of 1949 provides that: “The general rules of international law are an integral part of the federal law”. Article 10 of the Italian Constitution of 1947 states: “The Italian legal system conforms to the generally accepted rules of international law.” According to Article 28(1) of the Greek Constitution, “The generally acknowledged rules of international law, …shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law.” See, Duc V Trang, Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary (1995) 28 Vand. J. Transnat’l L. 1
8 Therefore, to ascertain the precise scope of federal executive powers one must look at the Federal List. See Andrew Harding, Law, Government and the Constitution in Malaysia, (1996) Malayan Law Journal Sdn. Bhd., Kuala Lumpur, 107.
9 See Abdul Ghafur Hamid & Khin Maung Sein, Treaty–Making Power in Federal States with special refeence to the Malaysian Position, (2003) 30 Journal of Malaysian and Comparative Law (JMCL), 65–88.
10  MLJ 355 (Federation of Malaya High Court)
11 See R. v Secretary of State, ex parte Rees–Mogg  1 All ER 457, CA; D.J Harris, Cases and Materials on International Law, (5th.ed., 1998), 778.
12 See Heliliah Bt. Haji Yusof, Internal Application of International Law in Malaysia and Singapore, (1969) 1 Singapore Law Review, 62–71, at 65 where the learned author referred to the Treaty of Friendship between the Federation of Malaya and the Republic of Indonesia of 10 April 1959, and stated that since the conclusion of the treaty there had been several cultural exchanges and these were implemented without legislation.
13 In respect of the ‘direct application’ and ‘self–executing nature’ of treaties in many countries, see J. H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, (1992) 86 AJIL 310.
14  1 MLJ 13.
15 Section 3 of the Diplomatic Privileges (Vienna Convention) Act 1966, provides that “The articles set out in the Schedule hereto (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in the Federation”. According to the ‘Schedule’ to the Act, Articles of the Vienna Convention having the force of law in the Federation are: Articles 1, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40.
16  7 MLJ 193 (High Court of Kuala Lumpur).
17  3 CLJ 927 (High Court Malaya, Kuala Lumpur)
18 Villiger, Customary International Law and Treaties, Martinus Nijhoff Publishers, Dordrecht, (1985), 14; Brownlie, Principles of Public International Law, 10; Ahehurst’s Modern Introduction to International Law, 48; Harris, D.J., Cases and Materials on International Law, 5th.ed., 1998, 25, n. 1; John O’Brien, International Law, Cavendish Publishing Ltd., London, 2001, 76.
19 In the leading case of Chung Chi Cheung v R  AC 160, Lord Atkin, delivering the judgement of the Privy Council, stated:
The court acknowledges the existence of a body of rules, which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will threat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.
As the Chung Chi Cheung case was decided by the Privy Council, it has a binding legal effect, and was reported in Malaysia as Chung Chi Cheung v The King  I MLJ 1.
20 Article 160 of the Federal Constitution defines “law” to include “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. It seems that this provision of the Federal Constitution can also arguably be taken as an authority for application of customary international law in Malaysia because ‘common law’ is within the meaning of ‘law’ and customary international law in so far as not inconsistent with statutes and judicial decisions of final authority are part and parcel of common law.
21 See H.L. Dickstein, The Internal Application of International Law in Malaysia: A Model of the Relationship between International Law and Municipal Law, (1974) 1 Journal of Malaysian and Comparative Law, 205–215, at 207. Dickstein is one of the two scholars (the other is Heliliah), who wrote on the issue of the application of international law in Malaysia.
22  2 MLJ 300.
23  1 MLJ 148 (Privy Council Appeal from Malaysian Federal Court)
24 2 MLJ 100 (High Court, Johore Bahru)
25 It is doubtful whether the Emergency (Essential Powers) Ordinance No. 7, 1969, was made to import the 1958 Geneva Convention on the Territorial Sea into Malaysia because the main purpose of the Ordinance was to increase the breadth of the territorial sea of Malaysia from the traditional 3 nautical miles to 12 nautical miles and it was common knowledge that the 1958 Convention failed to adopt any territorial sea limit.
26 It is submitted that the Ordinance stops at Article 13 (i.e. it just refers to Articles 3 to 13) because its ultimate objective is to provide the breadth of the territorial sea of Malaysia as 12 nautical miles which is to be measured in accordance with Articles 3 to 13 of the 1958 Convention (these articles deal with how to delimit the territorial sea) and the Ordinance does not refer to the rest of the Convention because it has nothing to do with ‘the right of innocent passage’ or other important provisions of the Convention.
27 It seems that by virtue of section 57 (1) (a) of the Evidence Act, 1950, the court could take ‘judicial notice’ of the existence of the customary international law right of innocent passage. Even if customary international law were treated as a ‘foreign law’, expert opinion as to whether there was such a right could be taken under section 45.
28 See Brownlie, Ian, Principles of Public International Law, Oxford, Clarendons Press, (5th.ed., 1998), p. 305; O’ Connell, D.P., The International Law of the Sea, vol. 1, (1982), pp. 260–66 (where the learned writer stated that by the beginning of 12th century a customary international law right of innocent passage existed as a result of State practice). This right of innocent passage has also been accepted by the United Kingdom. In the Corfu Channel case (1949) ICJ Rep. 1, the UK relied on the right of innocent passage through the Corfu Channel which is part of the Albanian territorial sea and the ICJ upheld the UK’s right of passage; see Anne Bardin, Coastal State’s Jurisdiction over Foreign vessels, (2002) 14 Pace Int’l L. Rev. 27, at 34.
29  2 MLJ 656 (High Court, Kuala Lumpur)
30  1 CLJ 878,  1 MLJ 475 (Supreme Court of Malaysia)
31 The case was decided by the Supreme Court of Malaysia, consisting of Hashim Yeop Sani CJ (Malaya), Yusof Mohamed SCJ, and Gunn Chit Tuan SCJ. The judgment was delivered by Gunn Chit Tuan SCJ.
32 (1919) 2 F.M.S.L.R. 193. F.M.S. Supreme Court
33 Mortensen v Peters (1906) 8 And (J) 93. Following the decision in Mortensen v Peters, several foreign masters of trawlers registered in Norway were arrested and convicted in Scotland for the same offence. They were released, however, following a series of protests by the Norwegian Government. In March 1907, a Foreign Office spokesman admitted in the House of Commons that: “the Act of Parliament as interpreted by the High Court of Justiciary is in conflict with international law”.
34 Salomon v Commissions of Customs and Excise  2 QB 116 (CA) per Lord Diplock; R. v Secretary of State for the Home Department, Ex Parte Brind  1 AC 696 (HL) per Lord Bridge.
35 See Heliliah Bt. Hj. Yusof, Internal Application of International Law in Malaysia, (1969) 1 Singapore Law Review, 62–71, at 69, The learned writer refers to the Loans (International Bank) Ordinance 1963 as an example, which expressly provides that if there is a conflict between the provisions of the Loans Agreement and any law in force in the State, the provisions of the Loans Agreement shall prevail.
36 This basic principle can be found in Article 13 of the ILC’s Draft Declaration on Rights and Duties of States 1949 in these terms: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty”; G.A Resolution 375 IV , GAOR, 4th Session, 1949, p. 66. There is consistent judicial and arbitral authority for this principle; see The Alabama Claims Arbitration (US v GB), Moore.1 Int Arb. 495; Exchange of Greek and Turkish Populations case, (1925) PCIJ Reports, Series B, No. 10, p. 20; Free zones of Upper Savoy and the District of Gex Case, (1932) PCIJ Series A/B , No.46.
37 Article 1, the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, 2001.
38 Phosphates in Morocco, Preliminary Objections, (1938) PCIJ Series A/B No. 74, p. 10, at 28; S.S. Wimbledon, (1923) PCIJ Series A, No. 1, p. 15, at 30; Factory at Chorzow, Merits. (1928) PCIJ Series A. No. 17, p. 29; Corfu Channel case, (1949) ICJ Rep. p. 4, at 23;Nicaragua case, Merits, (1986) ICJ Rep. p. 14, at 142, para 283; Gabcikovo–Nagymaros Project (Hungary v Slovakia), (1997) ICJ Rep. p. 7, at 38, para 47.
39 Rainbow Warrior (New Zealand v France), (1990) 20 UNRIAA 217, at 251, para. 75.
40  3 CLJ 927 (High Court Malaya, Kuala Lumpur)
41 Commission on Human Rights, Resolution 1994/41 of 4 March 1994, endorsed by the Economic and Social Council in its decision 1994/251 of 22 July 1994.
42 David Samuels, Malaysian Justice on Trial, Int’l Com. Litig. , Nov. 1995, at 10–13.
43 Beginning in December 1996, Cumaraswamy became the defendant in a series of four defamation suits on statements attributed to him by International Commercial Litigation.
44 Section 22: “Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded privileges and immunities as are necessary for the independence exercise of their functions…. In particular they shall be accorded:
(b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind….”
45 Dato’ Param Cumaraswamy v MBF Capital Bhd. & Anor.,  1 CLJ 1, (Court of Appeal, Kuala Lumpur, Judgment delivered by Gopal Sri Ram).
46 Section 30 of the Convention on the Privileges and Immunities of the United Nations reads:
All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.
47 (1999) ICJ Reports 62.
48 By fourteen votes to one. The following is a quotation from the almost unanimous opinion of the Court: “In the process of determining whether a particular expert on mission is entitled …to the immunity, the Secretary–General of the United Nations has a pivotal role to play.... The Court is of the opinion that the Secretary–General correctly found that Mr. Cumaraswamy, in speaking the words quoted in the article …was acting in the course of the performance of his mission as Special Rapporteur of the Commission. … That finding …creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts…”
49 By thirteen votes to two. “The Court concluded that the Government of Malaysia had an obligation, under Article 105 of the Charter and under the General Convention, to inform its courts of the position taken by the Secretary–General. According to a well–established rule of international law, the conduct of any organ of a State must be regarded as an act of that State.” Because the Government did not transmit the Secretary–General’s finding to the competent courts, and the Minister for Foreign Affairs did not refer to it in his own certificate, Malaysia did not comply with the above–mentioned obligation”.
50  4 CLJ 709 (High Court Malaya, Kuala Lumpur)
51 States participated in the proceedings expressed varying views on the issue of exclusive authority of the Secretary General in this respect. A discussion in greater detail on this issue, see Charles H. Brower, II, International Immunities: Some Dissident Views on the Role of Municipal Courts, (2000) 41 Va.J. Int’l L. 1
52 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, (1999) ICJ Rep. 62, at para. 61.