LEGISLATION

MLS 1023
(WEEK 3)

1. Legislation
2. Legislative Process
3. Statutory Interpretation
Legislation
Part 1
Sub - Topic Learning Objective
• Demonstrate the meaning of legislation passed by the Parliament
• Demonstrate the meaning of legislative bodies
• Demonstrate the meaning of law-making process
What is Legislation?
• It refers to laws which have been formally passed by either Parliament
(at the Federal level) or the State Legislative Assembly (at the state
level).
• Section 3 of Interpretation Acts 1948 and 1967 - provides ‘ State laws
are called Enactments, including those made by the former Malay
States before Merdeka Day. The only exception to this is the State of
Sarawak whose laws are still termed Ordinance”.
• Article 160 (2) of the Federal Constitution -provided “Enactment,
where the expression occurs in the Eight Schedule, means a law made
by the legislature of a state.
LEGISLATIVE BODIES AND LEGISLATION
• Parliament may make laws for the whole or any part of the Federation and laws having effect
outside as well as within the Federation. (Article 73 of FC )
• Legislature of a State may make laws for the whole or any part of that State.(Article 73 of FC)

Proclamation
Federal State
of Emergency

Dewan Rakyat & State Legislative

YDPA
Dewan Negara Assembly

Enactment (Other
States )
Act Ordinance
Ordinance (Sabah
& Sarawak)
Case laws:
• Government State of Penang & Anor v Government of Malaysia &
Anor [2014] 6 MLJ 322 – the issue of local government election being
expressly mentioned as a subject matter under State Legislature.
• where the FC observed that the Ninth Schedule (of FC) clearly draws a
clear demarcation of powers between Federal Parliament and State
Legislature. However under Article 76(A) of the Federal Constitution,
the Federal Parliament can still legislate laws concerning any matter
under the State List to ensure uniformity of law and policy.
Federal legislation: there are 4 types of Act

Consolidated
Principal Act Amendment Act Revised Act
Act
• Main Acts • Changes in • Changes made • Combination
• Eg: Contracts Principal Act by of two or
Act 1950 Commissioner more Act on
of Law Reform specific matter
• Eg: Civil Law
Act 1956
(Revised 1972)
Legislative Process
• Before any law can be called ‘Act’, they are known as Bill.
• There are three types of Bills:

• 1) Public Bill – Matters concerning defence, taxation and public order

• 2) Private Bill – local or private matters
• 3) Hybrid Bill – private matters that also effect private bodies
Legislative process
• Before parliament can make a law, some procedures need to be
followed.
• A law needs to be drafted.
• The draft known as a ‘Bill’. Normally the Bill was prepared by a
particular government minister or ministry with the help of the
Attorney General Dept.
• The Bill was first discussed among the ministers in the Cabinet. After
obtaining agreement, the Minister shall bring the Bill to the
Parliament to fix a date known as the ‘First Reading’.
Please watch this video
Can the Parliament Delegates Its law making
Duties to Other Bodies?
• Yes, parliament may delegate its duty to other bodies to make law.
• For example, federal government department (Department of Defence,
Education, Health and Immigration, Human resource etc.) known as
subordinate authorities responsible to regulate certain matters in the
country.
• These departments are empowered to make regulations. The regulation
will be known as delegated legislation or subsidiary legislation.
• The power of the Parliemanet to delegate its duties of making the law to
other bodies can be found in S Kulasingam & Anor v Commissioner of
Lands, Federal Territory & Ors [1982] 1 MLJ 204
Subsidiary Legislation
Part 2
 Subsidiary Legislation(SL)
• Subsidiary legislation is made by lawmakers other than the
Parliament, normally through government minsters or
public bodies.
• SL is laws made through powers delegated by legislature to
a body or person via enabling or parent statutes.
• Section 3 of Interpretation Act defines “subsidiary
legislation”- means ‘any proclamation, rule, regulation,
order, notification, by-law or other instrument made under
any Act, Enactment, Ordinance or other lawful authority
and having legislative effect.’
• Can you name any SL?
• SL must be consistent with the parent Act.
• It may not be ultra vires with the Parent Act.
• Sec 23(1) of the Interpretation Act 1948 and 1967 provides – “any
subsidiary legislation that is inconsistent with an Act shall be void to
the extent of the inconsistency.
• S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors
[1982] 1 MLJ 204 – Federal Court highlighted that Acts of Parliament
are the direct Acts of the supreme legislative body in the country;
delegated legislation are laws made under the authority of the Acts of
Parliament.
Function of Subsidiary Legislation

Assist Parliament
• in making law due
to time constraint
• When the area of
law need input from
the expert
 Subsidiary Legislation(SL)
Advantages Disadvantages
• Save time for legislatures • Loss of legislative control
• Technical expertise • Bulk and frequent changes
• Flexibility and convenience
• Legislation can continue even
when Parliament not in session
So how to control SL?
• Court has power to make judicial review and declared SL ultra vires

Judicial Control
• This can be done by way of substantive - Major Phang Yatt Foo vs Brigadier Generl Dato’ Yahya &
Anorther [1990] 1 MLJ 252
• It can also be done by procedural -Azizah Bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur [1992] 2
MLJ 393

Legislative • Parliament may exercise control over SL by repealing the parent legislation or SL
• May repeal, revoke or vary the delegated power

Control • An enabling statutes (Parent Act) may also require legislation made under it to be laid
before the Parliament either for ‘information or confirmation’

• Refer to certain professional or experts for opinion or advise

Consultation • This step must be done before the SL is finalized

• Some parents Acts make a requirement for the consultation to be compulsory. If the
process is not being followed, then the SL can be said as ultra vires and becomes void.

Publication SL is published -
Statutory Interpretation
Part 3
Topic Learning Outcome
• Explain the importance of statutory interpretation
• Explain various approaches available and applicable in interpreting
the statutes.
What is Statutory Interpretation?
• It is a process where the judiciary needs to interprete the statutes to
apply the law that has been legislated by the legislators.
• This is necessary because, when the legislators make the law, the law
would be general and broad in nature.
• In order to apply the law that has been made, the judiciary needs to
interprete them so that it would be able to apply the law as to how
the legislators intended the law to be.
Statutes on Statutory Interpretation – judges have
the task to ascertain the intention of the legislature
• There are 3 statutes on statutory interpretation in
Malaysia:
1. Interpretation Acts 1948 and 1967.
2. Interpretation and General Clauses Enactment of
Sabah applicable to Sabah enactments.
3. Interpretation Ordinance of Sarawak 1953
applicable to Sarawak Ordinances.
4. In addition to the statutes on interpretation, most
statutes have a 'definition section’- (usually s2)
defining terms used in the statute
 Statutory Interpretation

Rules of Statutory
Aids to Interprete Language Rules
Interpretation

Traditional rules
1. Literal Rule 1. Ejusdem Generis (of
Internal Aids
2. Golden Rule the same kind)
3. Mischief Rule

Recent Approaches
External Aids 2. Noscitur a
1. Purposive Rules
sociis (known from
2. Unified or Contextual associates)
Approach

3. Expressio unius est

exclusio alterius 
Rules of Statutory Interpretation
• The principles evolved by the courts in England in interpreting statute are
adopted and applied with local modifications by the Malaysian courts in
interpreting local legislation.
• These principles incorporate:
1. 'rules' of statutory interpretation;
2. Language rules;
3. Internal and external aids to interpretation.

The so called 'rules' are the primary aids to statutory interpretation; the rest are
secondary aids.
‘Rules' of Statutory Interpretation
• They are not rules in the strict sense because they have no binding
force and there is no obligation upon judges to apply these. They
are only guidelines for judges in interpreting the statutes.

• There are 3 English traditional rules of statutory interpretation:

• •Mischief Rule
• •Literal Rule
• •Golden Rule

• And 2 recent 'rules' or `approaches’

•Purposive Approach
•Unified or Contextual Approach
Literal Rule
• Developed in England.
• If legislation is drafted in great length and in detail, this suggest
that the legislature has expressed its intention fully in words
used and there is no need to imply any additional meaning.
• Based on this approach, the word in the statutes must be given
literal and grammatical meaning; whatever the outcomes may
be.
• Regina v City of London Court Judge [1892] 1 QB 273
• In a shipping collision case, the court gave guidance on how a
statute should be interpreted using the literal rule: ‘If the words
of an Act are clear, you must follow them, even though they lead
to a manifest absurdity. The court has nothing to do with the
question whether the legislature has committed an absurdity.
The Golden Rule
The golden rule is an extension of the literal rule.
The best interpretation of ambiguous words can be chosen to
avoid an absurd result. 

The golden rule provides a kind of “escape route” when there is a

problem with the literal rule.
If the literal rule gives an absurd result, which is obviously not what
Parliament intended, the judge should alter the words in the statute
in order to produce a satisfactory result.
Leaw Mei Lee v Attorney-General & Ors
(1967)2MLJ 62
• The petitioner, a barister-at-law was ceded to the English Bar in July 1965. She
attended the postgraduate course organised by the University of Malaya while
reading in chambers of a local practitioner.
• The petitioner applied for admission as an advocate and solicitor.
• She contended that she had complied with the provisions of s 5(3)(a) of the
Advocates and Solicitors Ordnance, 1947 as firstly, the section creates with
retrospective effect, a notional reading in chambers, and secondly, it does not
prevent a person from reading in chambers and doing the post-graduate course at
the same time so long as the University course was done outside the usual office
hours.
• The petition was opposed by the Bar Council on the ground that the section
requires the post-graduate course to be done previous to the reading in chambers.
• Gill J held: that the petitioner had not complied with s 5(3) of the said
Ordinance as she had not done the post final course ‘previously’ to
reading in chambers.
• On appeal to the Federal Court applying the Golden Rule in
interpreting the word 'previously’ in para(a) as to avoid such an
absurd, or unjust result and held that the petitioner could do the post
graduate practical course and read in chambers concurrently.
Mischief Rule
The mischief rule (or purposive approach) gives judges the most
flexibility when deciding what ‘mischief’ Parliament intended to stop.

Judge must interpret the statute to avoid the mischief and to

develop the remedy. The question that the judge must answer is
what is the mischief  that the statute need to recover?

It was established in Heydon’s Case (1584).

When using this rule, a judge should consider:

1. What was the common law before the Act was made?
2. What was the mischief and defect that the common law did not
deal with?
3. What was the remedy parliament came up with?
4. What was the true reason for the remedy?
Smith v Hughes - QBD 1960
The defendants were charged with ‘soliciting in a street or public
place for the purposes of prostitution’ contrary to the Street
Offences Act 1959.

They were soliciting from upstairs windows.

Lord Parker used the mischief rule to convict, as he believed
that the ‘mischief’ that Parliament had intended to stop was
people in the street being bothered by prostitutes.
Purpose Approach
• The term purposive approach refers to a mischief rule which judges
sometimes apply when interpreting statutes.
• It is sometimes argued that the purposive approach is the same as the
mischief rule because the courts are simply trying to find out the
purpose of the act. The mischief rule however is different to the strict
criteria set out in Heydon’s case. The purposive approach goes further
by seeking to determine Parliament intentions in passing the act.
• In Malaysia, purposive approach has received statutory recognition.
This can be seen in S.17A of the Interpretation Acts 1948 & 1967.
• S17A of the Interpretation Acts 1948 & 1967 - In the interpretation of
a provision of an Act, a construction that would promote the
purpose or object underlying the Act (whether that purpose or
object is expressly stated in the Act or not) shall be preferred to a
construction that would not promote that purpose or object.
Unified or Contextual Approach
• The three traditional rules or approaches to statutory interpretation
seems to be merging.
• Judges are more aware the importance of context in construing the
meaning of statutory provisions.
• The word of an Act are to be read in their entire context in their
grammatical and ordinary sense, in harmony with the scheme of the
Act, the object of the Act and the intent of the parliament.
RULES OF LANGUAGE
1. Ejusdem Generis (of the same kind)

General words which follow particular and specific words all of one genus are presumed to be restricted to the
same genus as the particular words.

Powell v Kempton Park Racecourse (1899). 

It was an offence to use a “house, office, room or other place for betting”.  The defendant was operating from a
place outdoors. 

The court held that “other place” had to refer to other indoor places because the words in the list were indoor
places and so he was not guilty.

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’.
2. Noscitur a sociis (known from associates)

A word will be interpreted in the context of surrounding words. 

Muir v Keay LR 10 (1875) QBD 594

All houses kept open at night for “public refreshment, resort and entertainment” had to be licensed. 

The defendant argued that his café did not need a license because he did not provide
entertainment. 

The court held that “entertainment” did not mean musical entertainment but the reception and
accommodation of people, so the defendant was guilty.

Foster v Diphwys Casson (1887) 18 QBD 428

involved a statute which stated that explosives taken into a mine must be in a “case or canister”.

Here the defendant used a cloth bag.

The courts had to consider whether a cloth bag was within the definition. Under noscitur a sociis, it
was held that the bag could not have been within the statutory definition, because parliament’s
intention was referring to a case or container of the same strength as a canister.
3.Expressio unius est exclusio alterius 
 

(the express mention of one thing is the exclusion of another).

The express mention of things in a list excludes those things not

mentioned.  For example:

Tempest v Kilner (1846). 
A statute required that contracts for the sale of “goods, wares and
merchandise” of £10 or more had to be evidenced in writing. 

The court had to decide if this applied to a contract for the sale of
stocks and shares. 

The court held that the statute did not apply because stocks and
shares were not mentioned.
AIDS TO INTERPRETE
The aids will assist the judge to interpret the
meaning of word. By looking these aids judges
understand the real intention of the Act.

 There are two kinds of aids that is Intrinsic and

external aids.

a. Intrinsic / Internal Aids

Anything within the Act itself:
•Short Title
•Preamble / Long title
•Definition sections
•Other sections
•Objectives section (if there is one)
•Schedules
•Punctuation, illustrations
External Aids

·   Previous Acts on the same point – there was act

repealed prior introducing of the existing Act, Judges may
refer to the Act to reveal the meaning and intention of
legislature.

·  Earlier case law – The Act is introduced as a result of

certain case decided by judge which is influenced the
policy of nation or social, judges could refer to this case.
·     Dictionaries, including those of the time when the
act was passed
·      Hansard  (the official record of what is said and
done (proceedings and debates) in Parliament)
·         Law Commission reports
·         International treaties, etc.