Sources

of Malaysian Law
(J07 Q1)

Written Law
The Federal Constitution
- Is the supreme law of Malaysia. - It provides for a democratic system of government and the powers of the Federal and State Governments. - It also establishes a constitutional monarchy and entrenches fundamental rights/liberties of the individual. - Can only be amended by a special majority of of the total number of members of the legislation.

Unwritten Law
English Common Law and the Rules of Equity
- A very important source of Malaysian law. - The reception of English common law and equity in Malaysia is specically permitted by virtue of Section 3(1) and 5(1) of the Civil Law Act 1956.

Judicial Precedents - It is another very important source of Malaysian law.

- Refers to the law as developed through cases decided in the superior courts. - Sometimes referred to as judge-made law. - Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases.

The State Constitutions

- Every state in Malaysia has its own State Constitution. - Contain provisions pertaining to state matters as provided under the Federal Constitution. - Land matters, agriculture, forestry, local government and Islamic law are the main state matters.

Legislation
- Refers to the laws passed by Parliament as well as the State Legislative Assemblies. - The laws passed by Parliament since 1957 (i.e. after Malaysias independence) are called Acts while - those passed by the State Legislative Assemblies (except Sarawak) are called Enactments. - The laws passed in Sarawak are called Ordinances.

Customs
- Refers to the customs of the local inhabitants which have been accepted as law. - It mainly relates to family matters, e.g. marriage, divorce and inheritance. - The customs of non-muslims are no longer of much importance since the passing of the Law Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among non-muslims. - The customary laws of the Malays (also called adat law) remains an important source of law.

Subsidiary Legislation
- Refers to the rules, regulations, by-laws, orders and other instruments made by a person or body in accordance with the powers delegated to him/it under an enabling legislation. - Such legislation is an increasingly important source of law because Parliament and the State Legislature lack the time and expertise to deal with specic technical details.

Islamic Law
- Another important source of Malaysian law. - Only applicable to muslims. - Is only applicable to muslims. - Is administered at state levels by a separate system of courts called the syariah courts

ActEnactmentOrdinance
(D98 Q1a)

Act
- Refers to an Act of Parliament. i.e. law which is passed by the Federal Parliament after going through the various stages of discussion and debate in both house of Parliament and receiving the Royal assent from the Yang di Pertuan Agung. - However, not all laws passed by the Federal Parliament are called Acts. - Laws passed by the Federal Parliament during the period of the Malayan Union are called Ordinances.

Enactment
- Refers to the law passed by each State Legislature Assembly after going through the relevant procedure. - However, there is an exception in the case of the State of Sarawak. - The law passed by its Legislative Assembly are called Ordinances.

Ordinance
- First, it refers to laws promulgated by the Yang di Pertuan Agung during a state of emergency. The power to declare the state of emergency and promulgate such ordinances is found in Article 150 of the Federal Constitution. - Secondly, laws passed during the period of Malayan Union (between 1946 and 1959) are called Ordinance. - Thirdly, laws passed by the Sarawak State legislative are called Ordinance. 2 - 1 Teh Joo Ling All rights reserved

The Doctrine of Judicial Precedent

(Binding Precedent / Stare Decisis)
(J08 Q1)

A doctrine which requires decisions of higher courts to be followed by courts which are lower in the hierarchy of the court structure.

Ratio DecidendiObiter Dicta

(It must be noted that it is actually the ratio decidendi that binds future courts. Hence it is important to discover the ratio decidendi of a given case in order for the doctrine of binding judicial precedent to be successfully applied.)

In order to better understand the operation of the doctrine, the hierarchy of the courts must be borne in mind. The Federal Court is the highest court in Malaysia. Below it is the Court of Appeal. Below the Court of Appeal is the High Court. Below the High COurt are the lower courts comprising the Session Courts, Magistrates Courts and the Penghulus Courts, which are referred to as the Subordinate Courts.

Privy Council

How the Doctrine Operates?

Ratio Decidendi
- Refers to the rationale or principle of law on which the decision is based. - In other words, it is the legal reasoning behind a particular decision of the court.

- Decisions of the PC given on appeal from Malaysia or from another Commonwealth country, where the law is in pari materia to Malaysia, are binding on the Malaysian courts. Khalid Panjang and others v Public Prosecutor. D.G.I.R v Kulim Rubber Plantation Ltd

Obiter Dicta
- Refers to opinions or other matters expressed by the judge, which are not directly relevant to the case before him. - Not binding on future courts as they do not form the legal basis of the decision of case before the court. - They may have highly persuasive authority especially if they were made by judges of the higher courts.

House of Lords
- Decisions of the HoL being apart of the common law are binding in Malaysia to the extent permitted under Section 3 and 5 of the Civil Law Act 1956

Federal Court
- Decisions of the FC are binding on all courts below it. - In the same way as the House of Lards of England is not bound by its own decisions, the FC is not bound by its own decisions and may depart from them. Arulpragasan v Public Prosecutor. - However, this will only be sparingly done. Tunde Apatria v Public Prosecutor.

Advantages
- It helps to achieve certainty and uniformity in the law as like cases will be treated alike. - The law developed through cases is more practical as it is based on actual situations rather than on hypothetical ones. - Flexibility in the application can also be achieved. Although judges of the lower courts are generally bound by the decisions of the higher courts, the do not always have to do so. *list the exceptions under CoA.

Court of Appeal
- Decisions of the CoA are binding on all courts below it. - As this courts position is analogous to the CoA of England, it is bound by its own previous decisions to the same extent as the latter. Young v Bristol Aeroplane Co Ltd. - Exceptions: (J06 Q1)
(i) Where there are 2 conicting decisions, the court may choose to follow either. (ii) Where it is previous decision (though not expressly overruled by the House of Lords) cannot stand with a later decision of the House of Lords then the CoA is bound to refuse to follow its own previous decisions. (iii) Where its own previous decisions was given per incurium it is not bound to follow the earlier decisions.

Disadvantages (J98 Q2)

- Rigidity. A lower court is bound to follow the earlier precedent even if it is wrong.The case may not go on appeal to a higher court and thus the opportunity of correcting the earlier decision may be lost. - Sometimes it is dicult to discover the ratio decidendi of a case. - Bulk and complexity. A major problem with the doctrine is the voluminous and ever increasing number of cases. This adds complexity to the law and there is a danger that important relevant authority my inadvertently be overlooked.

High Court
- Decisions of the HC are binding on all Subordinate Courts, but on HC judge is not bound to follow the decision of another. Sundralingam v Ramanathan Chettiar

Subordinate Courts
- These courts are bound by precedents laid down by the Superior Courts but their own decisions do not bind any court. In criminal cases the English Court of Appeal (Criminal Division) regarded itself as bound by its own previous decisions in the same way as the CoA (Civil Division), except where this would cause injustice. R v Taylor
2 - 2 Teh Joo Ling All rights reserved

Legislation and Delegated Legislation

(D09 Q1)

Legislation
- Refers to the laws which have been formally passed by the properly elected bodies, i.e. the Parliament (at the Federal level) and the State Legislative Assemblies (at the State level). - Legislation passed by Parliament is generally called an Act of Parliament, while those passed by the State Legislative Assemblies are called Enactments (with the exception of Sabah and Sarawak, where they are called Ordinances.)

***
Delegated Legislation
(Subsidiary Legislation) - Refers to the rules and regulations, which are passed by some person or body under some enabling parent legislation. - The Interpretation Act 1967 denes it as any proclamation, rule, regulation, order, bye-law, or other instrument made under any Act, Enactment, Ordinance, or other lawful authority and having legislative eect.

Advantages
(i) Speed and Flexibility. Can be passed very quickly and is more exible. This is because it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, delegated legislation can be just as speedily amended or even rescinded to meet the changing needs of society. (ii) Lack of Parliamentary Time. Deals with the detailed rules necessary to implement the law. As Parliament does not have sucient time to deal with such minute details, delegated legislation is the more ecient way to fulll this need. (iii)Technical Knowledge and Skill. Certain matters may require the special skill and knowledge of experts in that area. Parliament itself may not have sucient experts for this purpose. Thus, delegated legislation fullls this need as well. (iv)Future Needs. Parliament may not be able to foresee the problems which may arise out of he implementation of a particular legislation. Future diculties may be better dealt with by subsidiary legislation.

Disadvantages
(i) Breach of the Doctrine of Separation of Powers The growth of delegated legislation goes against the doctrine of separation of powers. This is because law is not being passed by persons elected for that purpose. (i.e. the legislature). Instead it is being passed by ocers of government departments. (ii) Lack of Eective Supervision Parliament is unable to eectively supervise the making of delegated legislation due to lack of time. As a consequence, many rules and regulations may have been passed without proper consideration of some very important factors. (iii)Too Much Subsidiary Legislation Too much law is passed through delegated legislation without sucient Parliamentary control.

In view of these disadvantages there is a need to control the proliferation of delegated legislation.

Control
(J04 Q1)

Consultation
- Prior consultation with relevant advisory bodies and interest groups are quite often required to be had before the nalization of the delegated legislation. Sometimes the parent legislation. - Sometimes the parent legislation makes such consultation compulsory. - Disregard of the requirement may result in the delegated legislation becoming ultra vires and void.

Parliamentary Control
- Parliament may exercise control over subsidiary legislation by repealing the parent legislation or the delegated legislation. - However this is rarely done. More commonly, the parent legislation will require the rules or regulations made under it to be laid before the legislature. - The rules or regulations will become eective if there is no negative resolution against it. - Occasionally the parent legislation may require the delegated legislation to be subject to an armative resolution. In such cases the delegated legislation will become eective only when such an armative resolution is passed.

Judicial Review
- Where the delegated legislation is outside the powers contained in the enabling legislation. the court may declare such legislation as ultra vires the parent legislation and therefore invalid.

Publicity
- As a general rule the delegated legislation must be published in the Gazette. - It will become eective only from the date of such publication or on such other date as may be specied. 2 - 3 Teh Joo Ling All rights reserved

The Law Making Process

(J03 Q1)

Stipulated in the Federal Constitution and the standing orders of the Dewan Rakyat (House of Representatives) and the Dwan Negara (Senate)

The Initial Step

- Prepare a draft of the proposed legislation. - This is called a bill. - The bill is then introduced into Parliament. - This may be done either in the Dewan Rakyat or the Dewan Negara. - However, it is more commonly introduced in the Dewan Rakyat.

Stages
First Reading - This is a mere formality. - The Minister concerned would only mention the title of the bill and give oral notice as to when the 2nd reading would be moved. Second Reading - The Minister concerned would explain to the house the purpose of the bill and the main policy issues involved. (By this time they would have been printed and circulated to all members) - Debate on the bill is then carried out but this would be conned to its general principles. Committee Stage - The house will automatically resolve itself into a committee of the whole house. - This is the committee stage during which the details of the bill are discussed in a less formal manner and amendments are proposed, if necessary. - Sometimes the bill would be considered by a Special Select Committee instead of a committee of the whole house if a motion to that eect is agreed upon by the house. - This is an ad hoc committee appointed for a particular purpose. - The committee of selection will determine its size and nominate its members. Report Stage - The minister will move a motion to report the bill to the House. - When the motion is accepted, the committee stage ends and the House will resume sitting. Third Reading - This stage is another formality. - The Minister concerned would move a motion that the bill be read a 3rd time and passed. - When the motion is accepted the bill is accordingly passed. - The bill must then be submitted to the other house (i.e. to the Dewan Negara if the bill originated in the Dewan Rakyat and vice versa) where it would undergo the similar stages of consideration. - When the bill has been passed by both Houses of Parliament, it is sent to the Yang di Pertuan Agung for Royal Assent. Upon receiving the Royal Assent the bill becomes law (i.e. Act of Parliament). - By an amendment to Article 66 of the Federal Constitution, the Yang diPertuan Agung must assent to a bill within 30 days of it being presented to him. - In the case of non-money bills, he may return the bill to the house from which it originated with a statement of the reasons for his objection to the bill. - The bill will then be reconsidered by both the houses and if it is passed by them again after such reconsideration, he must give his assent within 30 days of it being re-presented to him, failing which it becomes law as if it had been duly assented to.

2 - 4 Teh Joo Ling All rights reserved

Rules of Statutory Interpretation

(D06 Q1)

Ejusdem GenerisLiteralMischiefGolden
The Ejusdem Generis Rule
- A general word follows a class of specic words, the general word is interpreted to refer to words of that class only. Example : Public Prosecutor v Pengurus Hong Trading & Co Where the relevant part of the statute referred to a prohibition on tea containing any Prussian blue, or lead or any compounds of lead or other matter... The question was as to the interpretation of other matter. The court applied the ejusdem generis rule and held that other matter referred to things of the same category as Prussian blue, lead or compounds of lead.

The literal Rule

- A word or phrase is given its literal or ordinary grammatical meaning. - If the words of the statute are in themselves precise and unambiguous they must be expounded in their natural and ordinary sense. - Very commonly used and sometimes appears to give a result contrary to the intention of parliament. - Fisher v Bell
(The court held, applying the literal rule, that the display was not an oer for sale but merely and invitation to treat. Thus, the shopkeeper was held not guilty.)

- The courts in Malaysia have also adopted this rule. Kon Fatt Kiew v PP (The court held, applying the literal rule, that ruber includes scrap rubber).

Mischief Rule
- Enables the court to interpret words or phrases which are unclear and ambiguous in the light of the statute as a whole. - In such cases the courts will enquire into the mischief behind the statute. i.e. the court will look into the overall intention of the legislature as discovered from a reading of the statute as a whole. Heydons case
(a) What was the common law before the making of the Act? (b) What was the mischief and defect for which the common law did not provide? (c) What remedy the Parliament has provided for? (d) The true reason of the remedy.

- This rule has been applied by the Malaysian courts. Lim Moh Joo v PP (Criminal Procedure Code required the PP to deliver a copy of a report to the accused not less than ten clear days before the commencement of the
trial. The issue was whether the same procedure applied when the prosecution was by a private person. The court held that it did, say that this was a case where the court must modify the language of the law to meet what must have been the intention of the legislature.)

Golden Rule
- Applied by the courts to avoid the usage of the Literal Rule if its application will give rise to an absurd result.

2 - 5 Teh Joo Ling All rights reserved