The Importance of Legality Principle
Legality principle is captured in the Latin phrase “nullum crimen sine lege, nulla poena sine lege,” which, roughly translated, means “no crime nor punishment without law.” The Islamic criminal theory, states similar concept , la jarimah wa la uqubah illa bil nas. The principle derived from the phrase is that, the law must be enacted before it can enforceable.
In legal discipline, the fundamental principles, or legal maxims, or in Arabic expression, qawaid fiqhiyyah form a reference and guidance in most theories. Most legal maxims in various legal system are founded upon rules of natural justice and legal norms. Meanwhile In Islamic law, most maxims have the origin from the fundamental sources of Islamic law, such as the Quran and Sunnah.
The objective of legality principle is mainly to protects individuals’ freedom and security, negates and prevents abuse of power and thus, avoids giving wide discretionary power to the authority. From historical point of view, the objective of the non-retrospective law is to avoid arbitrary infliction or “picked on” “disfavoured group” in the society.
The maxim mentioned above has two fundamental principles; the principles are, (1) One should not be charged, convicted and punished for an act not prescribed by law as an offence at the time of its commission, and (2) A criminal act will only be punished with the punishment exists at the time of its commission. In another expression, one should not be punished with a greater punishment than the punishment prescribed by law at the time of the commission of the crime. In short, the principle of non-retroactivity underlines the principle that there must be no crime and no punishment except in accordance with fixed and predetermined law. This is known in legal discipline as “Legality Principle”.
Legality principle has some important corollaries on the duty of the legislator and the judiciary. The legislature is obliged to legislate criminal law prospectively and legislate the law in specificity and unambiguous. Meanwhile, it is incumbent on the judiciary to strictly construe criminal provisions and exercise limited judicial creativity in the interpretation of criminal law penalising certain act.
In addition, every legislation must be publicised to the public in order to give them fair warning, which is an essential principle in the administration of justice. This is due to the nature of the principle that individuals should be warned that certain act is criminalised or punishable by law.
In terms of criminal law, although norms and values of society are sources of creation of crimes, it does not mean that the society or the courts and the prosecutors are free to decide by themselves on crimes through political legitimacy. Any action or inaction of a person shall only become enforceable as crimes once it is legalised or once the act is made as crime through legislative process in the legislature. That is to say, there shall always be legal process in order for an act or inaction to become a crime.
This fundamental concept is very clear in the Malaysian legal system whereby the sources of law are the statutes. If an offence is not stated in the form of statute, or law passed by any competent legislature, then no act can become a crime. It follows therefore, no prosecution can be made.
All courts in Malaysia shall have the power to hear matters that are found under a written law. Written law means, law which has been passed by legislatures. The power of Judges in the Syariah courts is similar to the power of the judges in Civil Court in the context of application of the law. All judges cannot take law in their hands and convict a person guilty for any act without having a law. Similarly, all prosecutors, in the Syariah or Civil Courts can only prosecute, or bring a person to court based on a law that has been passed by the rightful legislature. Rightful legislature is the legislature that has the power to make the law, which sometime referred as “competent legislature”.
For the purpose of determining the powers of the two legislatures the Constitution provided for provisions stating their specific powers. For instance, the Parliament can make law on matters that have been listed in the Federal List and the State Legislatures can make laws on matters listed under the State List. The Lists are found under the Ninth Schedule to the Federal Constitution. If any of the Legislature has gone beyond the powers listed under the respective list, the law may be declared void by the law though its constitutionality is presumed. There have been few occasions whereby law passed by the Federal and State legislatures have been declared void by the courts on the reason that they have legislated beyond the powers given to them by the Constitution.