UNIVERSITI TEKNOLOGI MARA

FIRST ASSESSMENT

COURSE NAME : JURISPRUDENCE II

COURSE CODE : LAW511

NAME : SERENA JAMES BERNARD

MATRIC NUMBER : 2016250662
GROUP : LWB06J

QUESTION:
TO WHAT EXTENT DOES ARTICLE 153 OF THE FEDERAL CONSTITUTION
GEL IN WITH ROSCOE POUND’S THEORY OF SOCIAL ENGINEERING AND
RECONCILIATION OF CONFLICTING INTERESTS? DISCUSS CRITICALLY.

ANSWER:

The proverb “no man is an island” means nobody is completely unreliant on other. So,
man needs a society to function at best. Society refers to a group of people or community in
which the studies that involves a community or people created the term sociology. According
to Auguste Comte, sociology is a science of society or a branch of knowledge which studies
the society. Law is the set of rules made by the authority to regulate the people in the society.
One way or another, it created balance and stability in life. Pound said law must be developed
in relation to existing social needs. It is considered a social institution, created and designed
to satisfy human wants, which helps attain the most wants with the least sacrifices through a
politically organized society. He was concerned of the effect of law imposed on society.
Thus, he wanted to develop a technology to redraft the law for it to take account of the social
reality. Hence, he came up with a theory of social engineering.

The doctrine of social engineering aims to build an efficient structure of society which
requires the satisfaction of maximum wants with the minimum of friction and waste. In
another words, it is based on the notion that laws are used as means to shape society and
regulate people’s behaviour. According to Pound, ‘law is social engineering which means a
balance between the competing interests in society’, in which applied science are used for
resolving individual and social problems.1 He further added that sociological jurisprudence
should ensure that law-making, interpreting and applying law take account of social facts.
Pound linked the task of the lawyer to that of an engineer. It is the jurists’ task to assist in
identifying and classifying interests that are protected by the law. This is because at his time,
America was going through a period of major changes but the lawyers during that time take
the law as it is without breaking the rigidity and in the end were always in the habit of
thinking static concepts. Pound suggested that lawyers and judges should abandon their rigid
attitude and adapt law to accommodate changes in order to help achieve the aim of social
engineering. Thus, social engineering was to enable the lawyer to think in terms of changing
or moulding the law.

Every person in a society is motivated by their own interest and wanted it to be given
preference over the other. However due to this conflict between interests will arise. This is
because of the competition between the individual occurs. This theory of social engineering
involves a balancing of competing interests, referred to as claims, wants or desires, about
which the law must do something if organised societies are to endure. 2 Through identifying
and protecting certain interests the law ensures social cohesion. Interests is a demand or
desire which human beings, individually or in groups, seek to satisfy and which must be
considered in the ordering of social relations. Therefore, it is important to define the limits
within which such interest is legally recognized and given effect to it and to secure the top
interests. Pound has classified three categories of interests that are to be protected by the law
which are individual interest, public interest and social interest.

Firstly, an individual interest. These are claims or demands which involved from the
standpoint of the individual life. It consists of interest of personality, interest in domestic
relations and interest of substance. For instance, the interests in the physical person, freedom
of will, honour and reputation, privacy, and belief and opinion. There are some cases that can

1
Gochhayat, Sai Abhipsa, 'Social Engineering by Roscoe Pound': Issues in Legal and Political Philosophy
(November 15, 2010). Retrieved date August 8, 2020, from https://ssrn.com/abstract=1742165 or
http://dx.doi.org/10.2139/ssrn.1742165
2
McManaman, Linus J., (1958), Social Engineering: The Legal Philosophy of Roscoe Pound, St. John’s Law
Review Vol. 33 No. 1, retrieved date August 4, 2020 from
https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=4478&context=lawreview
illustrate the individual interest. In the case of Lawrence v Texas3, the accused was arrested
along with an acquaintance at his apartment in Harris County, Texas, when sheriff's deputies
found them engaging in sexual intercourse. The U.S. Supreme Court ruled that U.S. laws
prohibiting private homosexual activity between consenting adults are unconstitutional. From
this case, we can see that the interest of individuals is protected by the law.

Secondly, public interest. These are the claims or desires asserted by the individual
from the standpoint of political life. This means that every individual in a society has a
responsibility towards each other and to make the use of things which are open to public use.
In other words, it is an interest in preservation of state. For instance, the integrity, freedom of
action and honour of the state’s personality, and claims of the politically organised society as
a corporation to property acquired and held for corporate purposes.

Thirdly, social interest. These are the claims or demands in terms of social life. This is
to fulfil all the needs of a society for the proper functioning and maintenance of it. This
category of interest can be seen from the perspective of preservation of general peace, health,
security of transaction’s, preserving social institutions like religion, politics, economic
interest. It is the most general and preferred level where conflicting interest must be balanced.
For example, the security against acts or conduct offensive to the moral sentiments of the
general body of individuals such as law dealing with prostitution, drugs and gambling, or
political progress especially in freedom of speech and association, or in self-assertion,
opportunity, and conditions of life.

The public, social or individual interests are different ways of looking at the same
thing. This is when conflict of interest will arise when one category of interest overlapped the
other category of interest. When conflict of interest arises, it will demand a process of
balancing one against another. Pound states that the competing interests must be balanced.
However, one cannot balance an individual interest against a social interest. Pound also
believes that weightier interests have the tendency to intrinsically prevail. The interests
involved should be balanced (transferred) onto the same plane, preferably the social plane.
Hence, Pound underlines the interest which are essentially “on the same” plane that need to
be compared when he deals with the issue of prioritisation and balancing of interest. As an
example, in a circumstance where freedom of an individual is affected, although it is an
individual interest, it is translatable as an interest of the society that its members should be

3
539 U.S. 558 (2003)
free. The balance of conflicting interests would therefore lead to a reconciliation
(harmonization) of interests. Therefore, the process of balancing, comparing, prioritising or
resolving conflicts between interests occurs can be done through Jural Postulates.

Every society has certain basic assumptions upon which its ordering rests which are
called Jural Postulates. Jural postulates presuppose legal reasoning about rights and obligations at
the various levels and involve what human beings must be able to (reasonably) assume in a
civilised society. According to Pound, these assumptions may vary from one legal system to
another based on ethno-cultural lines and can even be different within the same legal system
while others are quite similar in all societies. Primarily, in 1919, Pound has summarized five
postulates of a man that lives in a society. This includes not committing any intentional
aggressions upon individuals, acting with due care and good faith so that it will not impose an
unreasonable risk of injury on individuals, can appropriate what he has created by his own labour
and what he has acquired under existing economic order for his own use, acting in good faith
when deals with society, and keeping things within his boundary to prevent it from escaping and
harm others. However, these postulates are not absolute and will require revision in the future. In
1942, Pounds added another three to the postulates list. The three new postulates are a person will
have security as a job holder, society will bear the burden of supporting him when he becomes
aged, and society as a whole will bear the risk of unforeseen misfortunes such as disablement.
Since these postulates are not absolute it will require an ever changing or revision in the future.

In the case of in the case of Ooi Kean Thong & Siow Ai Wei v PP, the two young
people were accused of kissing and hugging in a public park and was charged with indecent
behaviour. The issue before this case was whether both the accused persons had behaved
indecently at the KLCC Park under the jurisdiction of DBKL. The Bench held that the
Federal Territory parks bylaw was not ultra vires Article 5 of the Federal Constitution, which
guaranteed liberty of the person. However, in this case, interest of both individuals to express
their love to each other in public are seen as indecent behaviour which then affect the interest
of the state. According to the judge, those who did not want to follow the rules set by DBKL
could choose to stay out of the parks and do as what they interest. However, the interest of
other users who are equally entitled to invoke Article 5(1) must also be respected. As
Malaysian is a conservative state, the people must view that such act are indecent and
therefore, DBKL are protecting the interest of such person who are uncomfortable seeing the
accused persons’ indecent behaviour by hugging and kissing at the park. In Malaysia, the
interest of an individual was treated by the court relatively and not absolute as in a more
liberal country such as United States of America. Thus, it can be seen from this case that
interest of an individual has conflicted with the interest of another individual.

In contrast to the case of Lawrence v Texas4, where accused was arrested along with
an acquaintance at his apartment was ruled by the Court that the U.S. laws prohibiting private
homosexual activity between consenting adults are unconstitutional. The act which was done
to express their feeling towards each other are in fact done in their own private residence
which was raided by the sheriff. From this case, the interest of the individuals can be seen
prevails over the interest of the state.

Whereas in the case of Muller v Oregon5, the owner of a laundry business was then
convicted of violating the Oregon labour laws by instructing a female worker to work more
than ten hours in a single day. Social science and medical information were considered in
which it is used to argue that overwork was especially detrimental to female health and that
the state had an interest in counteracting it. The Supreme Court upheld an Oregon law
limiting the workday for female wage earners to ten hours. The court concurred on the
grounds that society had an interest in protecting the bodies of potential mothers, whom the
majority opinion referred to as “bearers of the race,” opening the door for an expanded state
power to regulate the workplace on the basis of sex differences. Thus, by looking at this case,
the public interest of female employees overcomes the individual interest of an employer.

However, in contrast to the case of Lochner v New York6, where the appellant who
was the owner of a bakery shop was charged for wrongfully permitting an employee to work
more than 60 hours per week as regulated by the Bakershop Act. In this case, it was
contended that the statute is unconstitutional as it is abridged freedom of contract, statute did
not apply equally to all, instead only a certain class of workers, and that the legislature
exceeded its police power in prohibiting conduct that was not unlawful. It was decided by the
Court that the Act that allows only for 60 working hours per week is invalid because all men
are, by nature, free and independent, and have certain inalienable rights, inter-alia, the right to
freely contract. The bakers are clearly able to assert their rights and care for themselves
without the protecting arms of the State interfering with their independence of judgment and
action. Thus, in this case, an employee’s individual interest would prevail over the existing
social interest.

4
539 U.S. 558 (2003)
5
208 U.S. 412 (1908)
6
198 U.S. 45 (1905)
 Meanwhile, in a Malaysian case of Noorfadilla Saikin v Chayed Basirun & Ors7,
the plaintiff applied and was given the position of a temporary teacher at a school. However,
her placement was withdrawn when she was discovered three months pregnant. The court
held that the defendant’s decision to reject the placement amounts to gender discrimination
because only women have the capacity to become pregnant. There was no merit found by the
Court in the defendant’s argument that employing a pregnant woman to fill up the post will
defeat the purpose of the contract since it is a month to month contract that can be terminated
at any time. The act of revoking and withdrawing her placement because she was pregnant
constituted a violation of Article 8(2) of the Federal Constitution. The reason was because
a contravention of the plaintiff's rights by the defendants as agents of the executive. Thus, in
this case, the social interest of equality and no gender discrimination prevails over the public
policy or interest of the school that revoked her placement.

Pound considers all interests on the social level and his theory sheds light on the
importance of the desires of the people as opposed to the desires of a sovereign. His theory
allows members of the society to take steps towards protecting their interests and to make
sure that their voices are heard. Balancing the interest of the parties in deciding a case are part
of the and parcel of the jurisprudence of the adjudication 8. Thus, this would result in the
reconciliation of the society’s interests and the interests of the state. In discussing the
application of the general theory of sociological jurisprudence to the administration of
criminal justice, the jurist is primarily concerned with balancing the social interests in the
general security and in the individual life.9

According to Faigman (1992), reconciliation between the competing rights between

the individual rights and government interest, it will need for the Court to employs a wide
range of methods. The methods where the Court "balances" or accounts for competing
government interests is through the process of interpreting the Constitution. There are two
ways where the Constitution can be interpreted better. First, is by using the categorical
approach. The main aim of the categorical method is to fix the meaning of the Constitution
from case to case through analogy and definition. Another approach is by "definitional
balancing". Here, the Court will assess the weight of the right implicated by a particular
7
[2012] 1 CLJ 769
8
Luizzi, V. (1980), Balancing of Interests in Courts, American Bar Association, Vol. 20, No. 4, pp. 373-404,
retrieved date August 4, 2020 from https://www.jstor.org/stable/29761723
9
Masotti, L. H. & Weinstein, M.A. (1969), Theory and Application of Roscoe Pound's Sociological
Jurisprudence: Crime Prevention or Control?, University of Michigan Journal of Law Reform, Vol. 2, retrieved
date August 4, 2020 from https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2450&context=mjlr
government action against the gravity of the government's interest in acting. The balancing
placed an individual right on one scale and government purposes on another.

In the case of Ah Thian v Government of Malaysia10, the applicant had been

charged with committing armed gang robbery under sections 392 and 397 of the Penal Code,
an offence punishable under section 5 of the Firearms (Increased Penalties) Act 1971 as
amended. It was argued that the Firearms (Increased Penalties) (Amendment) Act 1974 was
ultra vires the Federal Constitution as its contravened Article 8(1) of the Constitution and was
therefore void. An adjournment was obtained to enable the applicant to obtain the leave of a
judge of the Federal Court to start proceedings for a declaration that the Act was void for the
reason stated. As can be seen in the case the Federal Constitution operates to protect the
interests of the society, thus, the Parliament cannot enact laws at its whim and fancy because
of the concept of ‘constitutional supremacy’ are in existence. This concept invalidates any
law that is found to be in contravention or contradiction as to the Constitution as under
Article 4(1) of the Federal Constitution.

Whereas in the case of Mohammad Nizar Jamaluddin v Dato Dr Zambry Abdul

Kadir, the three members of Perak State assembly who once supported Pakatan Rakyat state
government announced on changing into becoming political independants. However, they
gave their support towards the Barisan Nasional on matters of confidence and supply. Due to
this, Nizar asked Sultan Azlan Shah of Perak to dissolve the state assembly and call for new
elections. However, since Nizar has already lost confidence in the cabinet, the court decided
that by virtue of Article 16(6) of the Federal Constitution he shall cease to command and
that he must request for dissolution of Legislative Assembly. He also had been ordered to
resign as the Menteri Besar and swore Zambry as the new Menteri Besar. Therefore, plaintiff
claim had been dismissed. As in any case where the interest of an affected party must be
given sufficient consideration as compared to a mere legislation, the constitution must be
construed liberally.

Next we move the discussion to the context of Article 153 of the Federal
Constitution which is deemed as one of the most controversial articles in the Malaysian
constitution, thus, there is a need for us to understand clearly as to what Article 153 provides.
So, Article 153 of the Federal Constitution provides for the reservation of quotas in respect
10
[1976] 2 MLJ 112
of services, permits, and others for Malays and natives of any of the States of Sabah and
Sarawak. It specially talks about special position of the Malays and natives of any of the
States of Sabah and Sarawak and the legitimate interests of other communities. 11 For instance,
establishing quotas for entry into the Federal public civil service, Federal scholarships,
tertiary education enrolment and Federal trade or business licenses. The issue or controversy
that arise usually concerns with the positions in a place such as in the public service,
scholarships, exhibitions, and other similar educational or training privileges or special
facilities given by the Federal Constitution and any permit or licence for the operation of any
trade or business that is required by the federal law. The Yang di-Pertuan Agong (YDPA) is
required by the provision to safeguard their special position as in accordance to Article 153.

But nevertheless, whilst safeguarding the special position of the bumiputras, the
YDPA is also responsible for safeguarding the legitimate interests of other communities in
accordance with Article 153. The Parliament may not restrict any business or trade solely to
the bumiputras. It also provides that the civil servants must be treated impartially regardless
of their races. Article 153 cannot be used to deprive any person of any public office or any of
the federal scholarship, or to deprived of quotas in trade licenses or permits, or to refuse to
renew such person’s license or permit. The provision does reserved quotas for the bumiputras
but in a way it also protects the interest of the minority, here in this context, the non-
bumiputras. However, there are some people who critics that Article 153 to be unfair as it
tends to create an unnecessary and racialist distinction between Malaysians of different ethnic
backgrounds. This is because of the special treatment given to certain races has led to the
implementation of affirmative action policies. Therefore, it is easy to misunderstand the
competing interest in relation to the Article 153 if we are not able to identify what does the
Article 153 says.

In Article 153, we can see there are three categories of interest which include
individual interest, public interest and social interest. From the perspective of individual
interest, let us look at the freedom of contract for the Malays and native of Sabah and
Sarawak. The act of depriving any person of any public office held by him or the continuance
of any scholarship is deemed as disruption towards his or her freedom of contract to work in
the public office or to enjoy the scholarship for the purpose of his studies. 12 Disruption of
freedom to contract can also be seen from the context of depriving a person from obtaining a

11
Malaysian Federal Constitution
12
Ibid.
permit or license that is required for the operation of any trade or business. Refusal to renew
the said permit or licenses which is required for trade or business operation also amounts to
interference of freedom to contract.

Meanwhile from the perspective of public interest, interests of State as a guardian of

social interest in regulation of public employment are protected by Article 153. No person
shall be discriminate when it comes to public employment. For instance, a public service
employee should not be discriminated because of having a different race compared to the
majority of the employees. Discrimination is not a good practice to be practiced in a
workplace as it affects the performance of the employees. It is the public interest to disallow
discrimination to continue in practice in the public office. Hence, discrimination should not
be allowed be in a public or private workplace. Therefore, it is important for the Parliament to
enact law which does not promote race discrimination.

Next, from the perspective of social interest especially in general security of peace
and order. When one person is given a fair treatment while the other person is being deprived
of such treatment, peace and order may be in turmoil. Article 153 clause 9 stated that
Parliament are not empowered to restrict business or trade solely for the purpose of
reservations for Malays and natives of any of the States of Sabah and Sarawak. This means
that the non-Malays and the non-native of Sabah and Sarawak too may have reservation in
relation to be involved in a business or trade.

As we know it, Article 153 is an affirmative action policy, but it is claimed that it only
benefits the Malays and Bumiputras who comprise most of the population meanwhile the
minority is less benefited from the affirmative action policies. It, however, acts as a form of
restriction to the minorities, who are in this context, the non-Malays, and the non-natives of
Sabah and Sarawak. These restrictions may prevent the group from achieving their interests
being fulfilled. Hence, it is clear that there are competing interest of the Malays and the
bumiputras between the non-Malays and the non-Bumiputras. So, in order to ensure there are
cohesion between the two-competing group of people, the competing interest between the
two must be balanced. This can be done through applying the social engineering founded
Roscoe Pound. The social engineering aims is to attain the maximum of wants with minimum
amount of friction and waste. In applying the social engineering in the context of Article 153,
the competing interest between the two group of community can be balanced by identifying
the competing interest with the objective to achieve maximum wants with the smallest
friction.

The competing interest that can be seen from the context of Article 153 is the quotas
for entry into the Federal public civil service, Federal scholarships, tertiary education
enrolment and Federal trade or business licenses. According to the provided Article, Malays
and the natives of Sabah and Sarawak are given a special position when it comes to the issue
of placement in the public services, enrolment into tertiary education or even trade or
business licenses. Native in the context of Article 153 as for Sarawak means the citizen that
either belong to one of the races of indigenous to the State or is of mixed blood meanwhile
native of Sabah means that a citizen is the child or grandchild of a person of a race of
indigenous to Sabah and was born either in Sabah or to a father domiciled in Sabah at the
time of the birth. For instance, in the government, most of the public civil service employees
are of the Malays and Bumiputras, or that of enrolment into tertiary education for Malays and
Bumiputras which then leaves a little room for the non-Malays and non-Bumiputras a place
to fill in. Both groups have interest in the Federal public civil service, Federal scholarships,
tertiary education enrolment and Federal trade or business licenses and when only one of the
groups are benefiting from it, it will then raise an issue which then it developed into a
competing interest.

As we can see nowadays, there are more quotas given to the Malays and Bumiputras
for the enrolment into tertiary education especially in public universities. By virtue of Article
153, the YDPA is the one to give such directions to the authority as may be required to
ensure the reservation of such proportion as he deemed reasonable of such places for Malays
and natives of any of the States of Sabah and Sarawak. Majority of the population of
Malaysia is from the Malays and Bumiputras societies and due to the affirmative action
policies, they benefited the most by having more quotas for placements in the public service
and enrolment into public universities. Article 153 made sure that the interest of the Malays
and Bumiputras are protected. Hence, it can be said that the interest of the Malays and
Bumiputras are safely guaranteed by the provision of Article 153.

However, the interest of the non-Malays or the non-Bumiputras may not be given as
equal as the majority people of Malaysia. As we know it, more quotas were given to the
Malays and Bumiputras whereas the non-Malays and non-Bumiputras were given less. This
is seen as restrictions towards them. As they too have their interest in getting a placement in
the public service or enrolment into the public universities. But given a lesser quota means
that their interest may not be fulfilled, and this will lead to disappointment, thus, will make
the government seem unreliable as they only make policies that benefited the majority people
of Malaysia. However, that is not the case as Article 153 also safeguards the interest of the
non-Malays and non-Bumiputras. Article 153 does not derogate from the provisions of
Article 136 where it mentioned that all Federal employees are to be treated impartially
regardless of their races.

The jural postulates in the context of Article 153 can be seen using the definitional
balancing where the Court assess the weight of the right implicated by a particular individual
against the gravity of another individual interest. For instance, in relation to the reservation of
quotas. Although there are more quotas given to the Malays and Bumiputras by virtue of
Article 153, the Court assess the weight of the interests of two group and hence, the non-
Malays and the non-Bumiputras are not being restricted from having the same treatment. This
can be seen as an effort of the Parliament to reconcile the competing interest that exist.

In conclusion Pound’s theory guides the courts in dealing with cases which are
concerned with competing interests. As seen in Lochner v New York where all men are by
nature free and independent and have certain inalienable rights. However, in Malaysia, in
cases where individual interests are affected, the fundamental rights and liberties as
enumerated under Articles 5 – 13 of the Constitution are not treated by the courts as absolute
as in the case of Ooi Kean Thong & Siow Ai Wei v PP or that of Mark Koding v PP where
the right of the appellants to express themselves does not extend to a public act of gross
indecency and freedom of speech does not extend to intentionally causing ill-will between
races, and inciting hatred and contempt within members of the public respectively. It is
relatively important that interest of both sides are being considered by the Parliament before
deciding and enacting the policies as when only one sides are benefited from the policies, it
could disrupt the cohesion between the two side as for the context of Article 153, the Malays
and native of Sabah and Sarawak, and the non-Malays and those who are not native of Sabah
and Sarawak. The Parliament has using the jural postulates from Pound’s theory of
reconciliation of conflict to balance the competing interests. Therefore, since no man is an
island, balancing the competing interest that may exist between the society is the way to
ensure that the peacefulness of the country.
References

1. Gochhayat, Sai Abhipsa, 'Social Engineering by Roscoe Pound': Issues in Legal and
Political Philosophy (November 15, 2010). Retrieved date August 8, 2020, from
https://ssrn.com/abstract=1742165 or http://dx.doi.org/10.2139/ssrn.1742165
2. Luizzi, V. (1980), Balancing of Interests in Courts, American Bar Association, Vol. 20,
No. 4, pp. 373-404, retrieved date August 4, 2020 from
https://www.jstor.org/stable/29761723
3. Masotti, L. H. & Weinstein, M.A. (1969), Theory and Application of Roscoe Pound's
Sociological Jurisprudence: Crime Prevention or Control?, University of Michigan Journal
of Law Reform, Vol. 2, retrieved date August 4, 2020 from
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2450&context=mjlr
4. McManaman, Linus J., (1958), Social Engineering: The Legal Philosophy of Roscoe
Pound, St. John’s Law Review Vol. 33 No. 1, retrieved date August 4, 2020 from
https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=4478&context=lawreview
5. Malaysian Federal Constitution