Akmyr Ahmad Azwan

Lon Luvois Fuller

According to Lon Luvois Fuller in his ‘Morality of Law’ published in 1964, the purpose
of law is to subject human conduct to the governance of rules. The core of his thesis concerns with
the conditions sine quibus non for the functioning of laws. He opined that a legal system must have
certain characteristics if it is to command the fidelity of a right-thinking person and the basic
essential requirements of a legal system are, inter alia, it should provide coherence, logic, and
order.

Fuller divides morality on two aspects. Firstly, the external morality, which consist of (1)
Morality of Aspiration – the highest possible achievement that a State can be, and (2) Morality of
Duty – minimum requirements for a State to be considered as am effective self-governing State.

Secondly, the internal morality whereby according to H.L.A Hart in the Hart v Fuller
Debate, as a procedural rules and minimal requirements for a recognisable legal system. To
effectuate this concept, Fuller had laid down 8 principles of legality that is also known as “8
Desiderata”, through a hypothetical story of a person named King Rex. He added that a total
failure in any one of these eight directions does not simply result in a bad system of law; it results
in something that is not properly called a legal system at all.

The first principle of 8 Desiderata is that the law must be general. Generality essentially
requires that there are rules. Law must be more than patternless exercises of political power.
Generality will allow one law to captures different instance of offences. For example, the
Malaysian Penal Code is specifically enacted to deal with criminal matters in general so long as it
consist both elements of prohibited act accompanied with blameworthy state of mind. Similarly,
element of generality can be seen in light of Malaysian Legal Profession Act 1976 in which it
governs ‘generally’ all matters relating to the conduct of legal profession throughout the
Peninsular.

The second principle of 8 Desiderata is that the law must be widely promulgated, to
ensure that all citizens are aware of what the law is, what the law prohibits, and what the law
requires. This principle can be illustrated in Malaysian practice of ‘publication’ for all newly
enacted laws pursuant to Article 66(5) of the Federal Constitution. Likewise, just like other any
other laws, it has been affirmed in Loh Kooi Choon v Government of Malaysia that a Constitution
amending Bill will only become valid on being assented to by the Yang Di-pertuan Agong and
published as required under Article 66(5).
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The third principle of 8 Desiderata is that the law must be prospective towards the
future, hence, shall not be applied retrospectively. According to Article 7 of Federal Constitution,
the Malaysian document of destiny strictly prohibits any retrospective or backdated criminal
legislations and trials. This principle is affirmed in the case of Public Prosecutor v Mohamed
Ismail, whereby the court disallowed request of the prosecutor to impose the enhanced penalty of
mandatory death sentence as against the accused on the ground that the drug trafficking offence
was committed prior to the amendment of such provision. Similarly, in 2014 Federal Court case
of Winstech Engineering Sdn Bhd v Espl (M) Sdn Bhd, the court held that sanction obtained from
the Official Receiver after the filing of appeal application to the court in response to the winding
up order shall not be valid because it has been clearly stated under section 236(2)(a) of the
Companies Act 1965 that the sanction cannot be applied retrospectively.

The fourth principle of 8 Desiderata is that the law must be intelligible and
understandable. The concept is that the law will only obtained its effectiveness if it is able to be
comprehended by the citizens. For instance, it is understandable that killing other people is an
offence under Section 300 of Penal Code. On the other hand, the hopelessly wide application of
Sedition Act 1948 by virtue of its Section 2 under the authorization of ‘seditious tendency’ has
substantially criticised for not having precise grounds of conviction (not understandable). This is
evident by the fact that only since August 2014 and while the Act is about to be repealed, 14 people
have been charged for various reasons, inter alia, for allegedly having ‘liked’ an ‘I Love Israel’
Facebook page and by merely saying that the sodomy charges as against the opposition leader
were politically motivated. Similarly in the application of liquidated damages clause in Malaysia
pursuant to section 75 of Contracts Act 1950, its unspecific wordings has resulted in severe
uncertainty and confusion as to whether or not the parties need to prove actual loss first before
they can fully utilise the damages clause.

The fifth principle of 8 Desiderata is that there must be a possibility of obedience. Hence,
the law should not require any conduct which is beyond the ability of those affected. For example,
if there are any laws which prohibit sneezing or sleeping at any time, then it can be indubitably
fail this internal morality principle and fail to be considered as a valid law because it belie the
fundamental principle of natural law. Practically, there are several countries that passed laws which
give rise to criticisms. In Japan, the ordinary items that the citizens can buy over-the-counter in
other countries, such as ‘Vicks’, would be considered illegal because it contains pseudoephedrine
(which is a known stimulant). On the other hand, in Malaysia, possession of any form of narcotic
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drug, even a narcotic painkiller for severe or debilitating pain (e.g. Oxycodone & Hydrocodone),
can get a person mandatory punishment including death at Malaysian customs.

The sixth principle of 8 Desiderata is that the law must be constant through time.
‘Constant’ in this sense means that the law should not be changed too frequent. As an illustration,
the law of International Security Act 1960 has been firmly valid for 52 years, and was only replaced
by Security Offences (Special Measures) Act 2012 on 22 June 2012. The best practice of Malaysia
in regards to this principle is laid in the case of Phang Chin Hock v Public Prosecutor, in which
the honourable Tun Suffian LP (as he was then) affirmed that the amendments made in accordance
with Article 159 shall not, in any way, destroy the ‘basic features’ of the Constitution which have
been in existence since 1957. The basic features are, (a) the supremacy of the Constitution; (b)
constitutional monarchy; (c) Islam as the religion of Federation; (d) separation of the powers of
the three branches of Government; and (e) the federal character of the Constitution.

The seventh principle of 8 Desiderata is that the law must be consistent, and not
contradictory between one another. The law cannot prohibits what other law permits, and vice
versa. As for Malaysian context, the rule of consistency can be traced to Article 4 of Federal
Constitution whereby it states that all laws made by Parliament must be inconsistent with this
supreme constitution, or else, it will be void to the extent of its inconsistency. To illustrate, in
recent 2014 case of Nik Nazmi bin Nik Ahmad v Public Prosecutor, the court held that section 9(1)
and section 9(5) of Peaceful Assembly Act 2012 which require 10-days’ notice prior to any
assembly and fine not exceeding RM 10,000 for failing to comply with such order, is
unconstitutional as it is inconsistent with Article 10(2), and in consequence is struck down under
the authority of Article 4(1) of Federal Constitution.

The eighth principle of 8 Desiderata is that the law must be congruence between the
official actions and the declared rules. Meaning, the implementation of actions must essentially
be in agreement or in harmony to what actually the law allows. For instance, the police cannot
simply arrest people without having any valid reasons and act in contravention with their general
duties laid under section 20 of Police Act 1967. This last requirement also entails that some form
of control over the government must be instituted. In Malaysia, this control function is known as
‘judicial review’ and is taken up by the judiciary pursuant to Order 53 Rules of Courts 2012. Any
kind of tyrannical decisions will not be immunized from judicial review regardless how wide the
ouster clause is. An example of congruency in Malaysia can be exemplified by the 2013 case of
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Mohamad Ezam bin Mohd Nor & Ors v Tan Sri Norian Mai & Ors, whereby the plaintiff
succeeded in his judicial review application and entitled for an award of RM 15,000 per day for
his unlawful detention under the repealed section 73(1) of the Internal Security Act 1960.

In summation, there is no doubt that Fuller’s 8 Desiderata is a significant reference in

ensuring an effective procedural law making process. However, these ‘guidelines’ are not
conclusive to specifically define ‘what is law’ in respect of morality because it is a mere procedure
that even an arbitrary law can pass fulfilling this ‘inner morality of law’ concept.