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    Rel o S B T e in e N o L Nat A Law: Salsabila Binti Mohammad 1810348

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    Salsabila Mohammad
    The passage discusses the difference in practice between Malaysia and other common law countries like the UK, Australia, and Singapore in applying customary international law. In Malaysia, customary international law must be incorporated into domestic law by statute before it can be applied, following the doctrine of transformation. Other countries like the UK and Australia historically followed the doctrine of incorporation, where customary international law is automatically part of domestic law. Singapore takes a hybrid approach.

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    Rel o S B T e in e N o L Nat A Law: Salsabila Binti Mohammad 1810348

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    Salsabila Mohammad
    88 views17 pages
    The passage discusses the difference in practice between Malaysia and other common law countries like the UK, Australia, and Singapore in applying customary international law. In Malaysia, customary international law must be incorporated into domestic law by statute before it can be applied, following the doctrine of transformation. Other countries like the UK and Australia historically followed the doctrine of incorporation, where customary international law is automatically part of domestic law. Singapore takes a hybrid approach.

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    The passage discusses the difference in practice between Malaysia and other common law countries like the UK, Australia, and Singapore in applying customary international law. In Malaysia, customary international law must be incorporated into domestic law by statute before it can be applied, following the doctrine of transformation. Other countries like the UK and Australia historically followed the doctrine of incorporation, where customary international law is automatically part of domestic law. Singapore takes a hybrid approach.

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    88 views17 pages

    Rel o S B T e in e N o L Nat A Law: Salsabila Binti Mohammad 1810348

    Uploaded by

    Salsabila Mohammad
    The passage discusses the difference in practice between Malaysia and other common law countries like the UK, Australia, and Singapore in applying customary international law. In Malaysia, customary international law must be incorporated into domestic law by statute before it can be applied, following the doctrine of transformation. Other countries like the UK and Australia historically followed the doctrine of incorporation, where customary international law is automatically part of domestic law. Singapore takes a hybrid approach.

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    Rel󰈀󰉃󰈏o󰈞s󰈊󰈎󰈦 B󰇵t󰉒e󰈩󰈞

    In󰉃e󰈹n󰈀󰉃󰈏o󰈞󰈀l 󰇽󰈝󰇶 Nat󰈎󰈢󰈝a󰈘


    Law
    SALSABILA BINTI MOHAMMAD 1810348
    As󰈻i󰈈n󰈚󰈩󰈞t 5(󰇼)
    In PP v Rajappan [1986] 1 MLJ 152, the learned Lord President noted that it
    was necessary to translate the customary law principle into national law by
    means of a statutory provision in order for it to have binding legal effect in
    Malaysia: a hint for the application of the doctrine of transformation and a
    clear dualist trend even in the case of customary international law.

    Discuss the above statement with specific reference to the difference in


    practice between Malaysia and other common law countries, such as UK,
    Australia, and Singapore, in the application of customary international law.
    Tab󰈗󰈩 󰈢󰇿 Con󰉃󰈩󰈞t󰈻

    01 Mal󰈀󰉘󰈼󰈏a 03 Aus󰉃󰈹󰈀l󰈏a

    02 The U󰈝󰈎󰉄󰇵d Ki󰈝󰈈d󰈡󰈚 04 Sin󰈇󰈀󰈦󰈢re

    05 Con󰇹󰈘󰉉s󰈏o󰈝 & C󰈡󰈛m󰇵󰈝󰉄ar󰈎󰇵󰈻


    MA󰈴󰉝󰈄S󰈽A
    BEFORE INDEPENDENCE POST-INDEPENDENCE
    Sockalingam Chettiar v Chan Moi ● Indirectly through common
    law
    ● Whether the letter of
    administration granted during Village Holdings Sdn Bhd v Her
    Japanese occupation is Majesty the Queen in Right of
    consistent with international Canada
    law.
    ● Held: in accordance with ● The court held that section 3 of
    international law. Directly CLA 1956, mentioned it is a pure
    applied. absolute doctrine of state
    immunity
    ● NON-RECOGNITION OF THE DOCTRINE OF INCORPORATION
    BY THE MAINSTREAM JUDICIARY IN MALAYSIA

    1947 1984
    R married to 1954 Married again
    Complainant Migrated to in India
    in India Malaysia
    Register their
    marriage
    PP v RAJAPPAN
    ISSUE
    Whether section 494 of the Penal Code applicable to
    offence committed outside Malaysia

    Contentions: Held:
    The Lord President recognise the rule
    - Preserving the purity of of customary international law (refer to
    monogamous marriage Lotus case)
    - State can punish its nationals for
    - Avoid the offence of
    offences committed outside state
    bigamy
    - the need to transform such law into
    the domestic legal system is still
    Section 494 of PC is extra needed
    territorial
    T󰉀E 󰈖󰈯󰈽TE󰉍 󰈵󰈾N󰉂󰉌󰈭M
    Blackstone :the law of nations is adopted by the common law and the
    law of nations is a part of the law of the land.

    ○ The Lord Talbot: law of nations forms part of the law of England

    Limitation from doctrine of


    incorporation by Blackstone
    Chung Chi Cheung v R, Lord Atkin: English courts will treat a rule of
    customary international law as incorporated into the English law, so
    far as it is not inconsistent with statutes and prior judicial decisions of
    final authority
    R v Keyn: Trendtex Trading Corporation v
    Central Bank of Nigeria
    - whether the English trial court
    had jurisdiction to try the - affirms the current approach of UK
    German captain for
    manslaughter. - “As between these two schools of
    thought, I now believe that the
    - held that the trial court doctrine of incorporation is correct,
    lacked jurisdiction Otherwise I do not see that our
    courts could ever recognize or
    - no sufficient evidence change the rules of international
    law.”
    A
    U
    S
    T
    R
    A
    L
    I
    A
    Earlier approach: The international law was incorporated in the
    national law if there are no conflicts with the Act of Parliament.
    (incorporation)

    Chung Chi Cheung v The King 185

    '[t]he Courts acknowledge 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 treat it as incorporated
    into the domestic law, so far as it is not inconsistent with rules enacted by
    statute or finally declared by their tribunals.
    C󰉀O󰈉 H󰈖󰈰󰉁 C󰉀󰈽󰈯G v 󰈜󰈿E K󰈾󰈰󰉁
    ● two Chinese nationals are convicted of
    offences committed in Manus Island.

    ● claimed immunity from jurisdiction as


    they were members of the visiting
    armed force.

    ● The court ruled they were not entitled


    to immunity as they were not primarily
    involved with military tasks.

    = judicial act by the court required/DOT


    SI󰈰󰉁󰉝P󰈭󰈤E
    Generally in Singapore: adopted the doctrine where the
    customary international law may be invoked in the Singapore
    legal system as part of the common law.

    Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489,

    a Malaysian national was charged with an offence under Singapore’s Misuse of


    Drugs Act,

    Argued that since customary international law prohibited mandatory death penalty
    sentences as inhuman, the MDA provisions also violated Article 9(1).

    The Court of Appeal rejected the defendant’s submission that customary


    international law rules are automatically received into Singapore.
    Con󰇹󰈘󰉉s󰈏o󰈝
    the application of customary international law in Malaysia and other
    common law countries is different

    It depends on the sovereignty of the states and the behaviour of the


    states as some states may adopt the doctrine of incorporation or the
    doctrine of transformation and even both

    the application of customary international law in Malaysia confined to the


    two approaches
    Tha󰈝󰈕
    Yo󰉉!
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