INTRODUCTION TO LAW

WHAT IS LAW?

To the layman, law is understood as being a general rule of conduct

In the Oxford English Dictionary, law is defined as ‘ the body of enacted or customary
rules recognized by a community as binding’.

CLASSIFICATION OF LAW

LAW

PUBLIC LAW PRIVATE LAW

(governs the relationship between (rights and duties of individual
Individuals and the state) amongst themselves)

INTERNATIONAL LAW
( law that prevails between states)

Public International Law Private International law

CONSTITUTIONAL CRIMINAL
LAW LAW
(rights of individuals (offences against the state.
in the state) Obligations imposed on individuals)

CONTRACT TRUST TORT

(rights and obligations (relationship between (offences against individuals)
that arise by agreement) trustee and beneficiary)

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LEGAL SOURCES OF MALAYSIAN LAW

WRITTEN LAW UNWRITTEN LAW

FEDERAL ENGLISH LAW

CONSTITUTION

STATE JUDICIAL
CONSTITUTION PRECEDENT

LEGISLATION CUSTOMS

SUBSIDIARY
LEGISLATION

 SYARIAH LAW

WRITTEN LAW

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1.Federal Constitution:

Article 4 - Federal Constitution is the supreme law of the land

Article 75 – Inconsistencies between Federal and State Laws, Federal law shall prevail

Federal Constitution provides the basic or fundamental rights of an individual.

Federal Constitution comprises of, example:
- fundamental liberties
- citizenship
- election
- judiciary

First List Federal eg education , finance, defence, internal securities

Second list State eg Islamic law, land, agriculture, local government
Concurrent List Federal and State eg social welfare, scholarship, town,
National Parks, drainage, country planning

2. State Constitution:

Each state has its own constitution, eg Selangor Constitution, Perak Constitution.
Every state has a single chamber ie, Legislative Assembly.
The State Constitution contains provisions which are enumerated in the Eight Schedule
of the Federal Constitution.

3. Legislation:

Legislation refers to laws made by a person or body which has the power to make law
(Parliament and State Legislative Assemblies)

Laws made by Parliament are known as Act

Laws made by States Legislatives Assemblies are known as Enactment
Laws made by Legislative Assemblies of Sarawak, are known as Ordinance

PARLIAMENT STATE LEGISLATIVE

ASSEMBLIES
Enact laws at Federal level Enact laws at state level

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 Within limit prescribed by Federal
Constitution
Laws enacted before 31/8/57 are called
Ordinance
Laws enacted after 31/8/57 are called
Acts
Parliament can enact law in matters
listed in List I of the nine schedule
Enact Laws prescribed by State
Constitution
Laws enacted by State Assemblies are
called Enactment except Sarawak laws
called Ordinance
State Legislative Assembly can enact
law in matters listed in List II of the
nine schedule

Legislative Process:

Article 44: Parliament comprising of Yang di-Pertuan Agong, and two Houses ie the
Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives)

First Reading

Minister formally introduces the bill in the Dewan Rakyat by having its short title read.

Second Reading
Debate on the general principles of the Bill, followed by a vote.

Committee Stage

Detailed examination of the Bill and consideration of amendments, followed by a report

on the Bill to the dewan

Third Reading
Further debate on the general principles of the Bill, followed by a vote

Dewan Negara

Similar procedures as in the Dewan Rakyat. If passed the Bill is referred back to
the Dewan Rakyat.

Royal Assent
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The Yang di-Pertuan Agong affixes the Public Seal within thirty days of presentation.
Bill becomes an Act
Bill may originate in either
Dewan except for
Publication
money bill must originate
in Dewan Rakyat.
Act comes into force.
Federal Gazzete (Warta Kerajaan Malaysia)

4. Subsidiary legislation:

S 3 of Interpretation Act 1948 and 1969, define subsidiary legislation:

“any proclamation, rule, regulation, order, notification, by-law or other instrument
made under any Act or ordinance or other lawful authority and having legislative effect
Subsidiary @ subordinate @ delegated legislation is law made through powers
delegated by the legislature to a body or person via an enabling or parent statute.

Reasons for subsidiary legislation:

 The legislature has insufficient time to enact all the legislation, detailed in every
aspect, required in a modern society

 Much modern legislation is highly technical and is best left to experts or

administrators on the job that is well versed with the technicalities involved.

 The legislature is not continuously in session.

 Subsidiary legislation is flexible and elastic.

Controls of subsidiary legislation

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 Consultation Before regulations are made, the authority (eg
Minister) will consult other organized interest
groups or advisory bodies
Publicity If it is not gazetted, it is invalid
It will come in force on the date of publication
Parliamentary Control The legislature which grants the delegated
powers by an enabling statute may repeal the
statute or revoke or vary the delegated powers.
Judicial Review Courts may declare the exercise of the
(Control) delegated power and the subsidiary legislation
void under the ultra-vires doctrine (out of
scope)

UNWRITTEN LAW

1. Principles of English Law

English law comprises of two parts:

Common Law Equity Law

-body of rules developed - to mitigate the
by old common law courts harshness of law
- for justice

Reception of English Law and Equity through:

(a) Section 3(1) of Civil law Act 1956

 in West Malaysia, apply the common law of England and the rules of equity as
administered in England on the 7th day of April 1956

 in Sabah, apply the common law of England and the rules of equity as administered
in England on the 1st day of December 1951

 in Sarawak, apply the a common law of England and the rules of equity as
administered in England on the 12th of December 1949.

(b) Section 5 (1) & (2) of Civil Law

for commercial matters.

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eg: law of partnership, corporations, banks and banking, principals and agents,
carriers by air, land and sea, marine and insurance, life and fire insurance mercantile
law,

 If there are developments or changes in English common law and Equity after
the cut-off date, they do not become law in Malaysia.

Two conditions in applying English Law in Malaysia:

1. It is only applied in the absence of local statutes

2. It can only be applied if it is suited to local circumstances.

2. Judicial Precedents. (‘stare decisis’)

Judicial precedents are decisions made by previous cases that have similar situations.

Precedents are basically decision made by judges previously in similar situations.

For example:

 if the Federal court made a certain decision in 2000 and

assuming the facts and situations before a High Court judge
deciding a case in 2003 are similar to the said Federal Court
case, the High Court judge must decide the case before him
by applying the principles laid down by the Federal Court in
2000.

Two categories of judicial precedent:

Binding
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All decisions of higher The higher courts
Courts binds the lower are bound by their own
Courts decisions.

Persuasive
Ct may but need not apply when deciding the
case before it

High Court Judges are not Decisions from outside

Bound to follow the decision of the Malaysian Courts
Of another High Court Judges

Federal Court:
The decisions of the Federal Court are binding on all lower courts

Court of Appeal:
COA is bound by the decision of the Federal Court
COA’s decision is binding on all lower courts, including the High Court
COA is also bound by its own decision.

The High Court:

High Court decision is binding on all subordinate courts

Subordinate Court:
The Sessions courts and Magistrates courts are bound by the decision of the Superior
Court. The Sessions court and Magistrate court decisions are not binding over any
court.

Advantages of judicial precedents:

 It is more flexible when compared to statute law enacted by Parliament as law once
enacted can only be amended or repealed and legislative proceedings are time
consuming.

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 Case law is richer in legal detail than statute law.

3. Custom

Custom of local inhabitants in Malaysia are also a source of law.

Generally, customs relating to family law, ie. Marriage, divorce and inheritance are
given legal force by the courts in Malaysia.

Adat Perpatih: among Malays in Negeri Sembilan

and Naning in Malacca.

- Matrilineal system

MALAY :

Adat Temenggong: the other states. Originated

from Palembang, Sumatra expands a patrilineal
system of law.

Chinese:

Indian: Chinese Customary Law

Indian Customary Law

4. Muslim law

Federal Constitution provides that States have the power to administer Muslim Law.
The courts which enforce Muslim law in the country are the Syariah Courts.
Muslim law applies to Muslims only and does not apply to non-Muslims.
STATUTORY INTERPRETATION

The courts have developed a number of rules to assist in the interpretation of a statute, where
there is doubt as to the meaning of any part of it in order to help the judge arrive at a fair
judgment.

1. The literal rule

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This is a rule by which a word or phrase is given its literal or ordinary grammatical meaning.
According to this rule, if the words of the statute are in themselves precise and
unambiguous(clear) they must be expounded in their natural and ordinary sense. This rule is
very commonly used and sometimes appears to give a result contrary to the intention of
Parliament. The case Fisher v Bell (1961) is a good illustration of the application of this rule. In
this case a shopkeeper was charged for offering for sale certain weapons, including ‘flick
knives’, by displaying these knives in a shop window. The court held, applying the literal rule,
that the display was not an offer for sale but merely an invitation to treat. Thus, the shopkeeper
was held not guilty. The courts in Malaysia have also adopted this rule. This may be illustrated
by the case of Kon Fatt Kiew v PP (1935), where the court held, applying the literal rule, that
‘rubber’ includes ‘scrap rubber’

2. The golden rule

This rule is formed as a result of the inadequacy of the Literal Rule. The application of Literal
Rule sometimes would produce and absurd result, then the Golden Rule will apply. The Golden
Rule states that words in a statute must be interpreted according to their natural, ordinary and
grammatical meaning, but to the extent that such an interpretation does not produce a
manifestly absurd result. An illustration can be seen in the case Re Sigsworth. In this case, a
son murdered his mother. Under the rules of intestacy and the application of the Literal Rule, he
would eventually inherit her property, being the only heir. The court applied the Golden Rule.
The criticism : GR is applied when it is only reasonable to apply; what is reasonable is a
discretionary question, therefore what is reasonable to one judge might not be so to another. c.
The ejusdeym generis rule This is the rule by which, where a general word follows a class of
specific words, the general word is interpreted to refer to words of that class only. This rule was
adopted by the High Court in the case of Public Prosecutor v Pengurus Hong Trading & Co
(1985), 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’.

3. The Mischief Rule

This rule facilitates 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. The matters that the court must consider were laid down in
Heydon’s Case (1584) as follows:
(i) What was the common law prior to the Act? (ii) What was the mischief and deficiency for

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which the common law did not provide? (iii) What was the remedy that Parliament had provided
for? (iv) What was the true reason for the remedy?

This rule has been applied by the Malaysian courts in Lim Moh Joo v PP (1970).
In this case the Criminal Procedure Code required the Public Prosecutor 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, saying 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.

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HUMAN RIGHTS

Human Rights Commission of Malaysia Act 1999 @ SUHAKAM

1. Human rights may be said to be the basic rights that all human beings are entitled to enjoy.
According to section 2 of the Human Rights Commission of Malaysia Act 1999, “human rights”
refers to fundamental liberties as enshrined in Part II of the Federal Constitution.

2. According to Kofi Annan, the Secretary General of the United Nations - human rights are the
foundation of human existence and coexistence. Human rights are universal, indivisible and
interdependent. Human rights are what make us human. They are the principles by which we
create the sacred home for human dignity.

In brief, human rights are the basic rights which all human beings are entitled to enjoy. The
Human Rights Commission of Malaysia Act 1999 states that human rights mean the
fundamental liberties provided for under the Federal Constitution of Malaysia.

The provisions of the Federal Constitution which protect human rights are as follows:

1. No person may be deprived of his life or personal liberty except in accordance with the law.
(Article 5 of the Federal Constitution)

By this provision, individuals are protected from being unlawfully detained or put to death. An
individual who is unlawfully detained may obtain an order of the court through a writ of habeas
corpus. This is an order of the court requiring that he be lawfully charged in court or be
released. However, this right is not absolute. A person may still be deprived of his life or liberty
in accordance with the law.

2. No person may be subjected to slavery or forced labour. (Article 6 of the Federal Constitution)

The Constitution recognises that individuals should not be regarded as the property of others
and thus bans all forms of slavery and forced labour. However, this right of the individual is
given subject to the paramount interest of the nation. Thus,Parliament may make laws providing
for compulsory national service.

Protection against retrospective criminal law and repeated trial.

3. No person can be punished under a law which was not in force when the alleged crime was
committed. This protects the individual from being charged with a crime which was not
recognised as a crime at the time the alleged wrongful act was done. Thus, laws against crimes
cannot be passed with retrospective effect. (Article 7 of the Federal Constitution)

No person can be punished for an act or omission which was not punishable by law when it was
made.

4. A person cannot be tried more than once for the same crime of which he has already been
acquitted or convicted earlier. This right recognises that an individual should not be placed in a
position of double jeopardy, where he is made to undergo more than one trial for the same

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offence, if he has already previously been tried and either acquitted or convicted of it. However,
this does not apply in cases where a higher court has quashed an earlier trial and ordered a re-
trial. (Article 7 of the Federal Constitution)

All persons are equal before the law and entitled to equal protection of law (Article 8 of
the Federal Constitution)

5. Citizens cannot be discriminated against in relation to appointment to any office or

employment under a public authority, or in relation to any acquisition of property, establishing or
carrying on of any trade, business, profession, vocation or employment, merely on grounds of
religion, race, descent or place of birth. However, this right is subject to Article 153 of the
Federal Constitution, which permits the granting of special privileges to bumiputras.

6. Citizens cannot be discriminated against in relation to the providing of education, merely on

grounds of religion, race, descent or place of birth. This, again, is subject to Article 153 as
stated above.

7. Freedom of religion. (Article 11 of the Federal Constitution)

The Constitution also entrenches the right of the individual to profess, practise and propagate
his own religion. However, as Islam is the religion of the country, restrictions may be placed
upon the propagation of other religions among Muslims.

8. No citizen may be banished from the country. However, this right is subject to exceptions
whereby the Federal Government is permitted to deprive a person of his citizenship under
certain circumstances. (Article 9 of the Federal Constitution)

9. Every citizen has the right to freedom of speech, peaceful assembly and association.
However, in the interests of security, public order or morality, Parliament may impose certain
restrictions. For example, the Sedition Act 1948 provides that it is an offence to question the
sovereignty, powers and prerogatives of the rulers and the special position of the Malays.
Further, the freedom of speech does not entitle a person to defame another. A person defamed
has a right to sue under the law of defamation. (Article 10 of the Federal Constitution)

What is Suhakam?

SUHAKAM

By s.4(1) Human Rights Commission of Malaysia Act 1999, the functions of the Human Rights
Commission (SUHAKAM):

Function:

a. to promote awareness of, and provide education, relating to human rights; b. to advise and
assist the Government in formulating legislation and procedures and recommend the necessary
measures to be taken; c. to recommend to the Government with regard to subscription or
accession of treaties and other international instruments in the field of human rights; and
d. to inquire into complaints regarding infringements of human rights

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