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Sources of Malaysian Law
Sources of Malaysian Law
MALAYSIAN LEGAL
SYSTEM
SOURCES OF MALAYSIAN LAW
There are different types of legal systems around the world
Some have a combination of two or more legal systems: known as
mixed legal system while some countries practice only one type of
legal system.
In Malaysia the legal system consists of:
Common Law,
Islamic Law,
Customary Law; and
Native Law.
Hence it is a mixed legal system.
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Malaysian legal system comprises laws
which have arisen from three significant
period in the Malaysian history namely:
The Malacca Sultanate
The spread of Islam in Southeast
Asia and into Malaya; and
British colonial rule introducing the
common law and constitutional
governance.
In the case of Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at p.113 Suffian LP
pointed out that,
” The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written
constitution. The powers of Parliament and of State Legislatures in Malaysia is limited by the
Constitution and they cannot make any law as they please’.
How?
Matters concerning the Conference of Rulers, powers & rights of the Rulers, rights & privileges of Malays, & Natives of Sabah &
Sarawak, interests of other communities & citizenship, boundaries of States, issues regarding freedom of speech in the interest of
internal security & public peace.
(d) Amendment requiring two-thirds majority plus consent of the Yang Di-Pertua Negeri of Sabah / Sarawak under Art. 161E
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SUPREMACY OF THE FEDERAL CONSTITUTION
The supremacy of the Constitution is secured via the power of judicial review.
See e.g. Marbury v Madison 5 U.S. 137 (1803)
A U.S. Supreme Court case that established the principle of judicial review in the
United States, meaning that American courts have the power to strike down laws,
statutes, and some government actions that contravene the U.S. Constitution. The
Court's landmark decision established that the U.S. Constitution is actual "law", not
just a statement of political principles and ideals, and helped define the boundary
between the constitutionally separate executive and judicial branches of the
American form of government.
In Malaysia since we have a written constitution, the Court bears the onerous role of being
not only the interpreter but also the guardian of the Constitution as well as its
fundamental principles.
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How Does The Court Uphold The Supremacy Of
The Federal Constitution?
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The Court may invalidate laws that are ultra vires ( acting beyond the powers), that is to say:
(a) Enactment of laws outside the jurisdiction of Parliament or the State Legislature
(b)Laws inconsistent with the procedure for enactment prescribed in the FC
(c )Laws contrary to any provision of the FC
(d)Laws that are inconsistent with Federal law (where the law in question is State law)
Proceedings brought under (a) must comply strictly with the requirements of Art.4(4) FC;
Kerajaan Negeri Kelantan & Anor v Wong Meng Yit & 2 Ors (Court of Appeal, 27 June
2012).
In particular, proceedings begun for a declaration that a law is unconstitutional because it
is outside the competence of the legislature requires prior leave of a Federal Court judge.
Proceedings under (a) will be determined by the Federal Court; Art.128(1)
In practice, challenges to legislation under (b), (c) and (d) are heard and disposed at High
Court level or higher.
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INTERPRETING THE FEDERAL
CONSTITUTION
The most common approaches to constitutional interpretation are:
(a) The literal / originalist / conservative / “positivist” approach
(b) The liberal / creative / purposive / “living constitution” approach
Generally, in Malaysia, the guiding principle is that the FC is to be interpreted in its entirety, “within the
four walls of itself” and in view of the prevailing circumstances in this country.
See also: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Anor [1996] 1 MLJ 481 at p.531.
AMENDMENT
Changes to the Principal Act is made
ACT
First Reading
Legislation made through powers delegated by the legislature to a body or persons via a parent statute
Proclamation (an official announcement),
Rule (an accepted principle or instruction that states the way things are or should be done, and tells you what
you are allowed or are not allowed to do);
regulation (rules made by a government or other authority in order to control the way things operate/
governed);
order (a confirmed request by one party to another to carry out something);
notification (the act of telling someone officially about something, or a document that does this);
by-law (a regulation made by a local authority or corporation)
Refer to s.3 Interpretation Acts 1948 & 1967
Reasons:
Insufficient time to enact all legislation-to cover every aspect of society
Engage Expertise to address various issues
Saves time-Parliament not in session every single day of the year
What are the Control mechanism/methods to ensure compliance with Parent Act?
Judicial
Legislative
Other controls
Other controls
Consultation – before a subsidiary legislation is made, consultation to an expert body or person is mandatory
Financial Procedure Act 1957 authorises the YDPA to make regulations after consulting the Commodities Trading Commission
Publication – when a parent statute requires a subsidiary legislation to be publish, non-compliance will make it void
Such publication will be in Malay and English in 2 parts of the Gazette:
Tambahan Perundangan ‘A’ (Legislative Supplement ‘A’ which contains all proclamation rules, regulations, orders and by-laws (PU (A))
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Tambahan Perundangan ‘B’ (Legislative Supplement ‘B’ which contains all other subsidiary legislation (PU(B))
ENGLISH COMMON LAW
AND RULES OF EQUITY
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Common law & rules of equity (and statutes of general application in Sabah & Sarawak)
applies only in certain situations:-
b) Cut-off dates
Only common law & rules of equity (and statutes of general rules of
application in Sabah & Sarawak) up till the cut-off dates is applicable
Although decisions after the cut-off date is not binding, it can be persuasive
c) Local Circumstances
English law is only applicable when permitted by local circumstances &
inhabitants
&
STATUTORY INTERPRETATION
Horizontal (some courts are bound by their own prior decisions and prior decisions of a
court of the same level,whether past or present).
•The basic rationale for the observance of precedent is that a court higher in the same
hierarchy has laid down that principle as the applicable law. If a lower court chooses not
to follow that principle, on appeal the higher court can correct the decision.
Case: Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira [1996] 3 MLJ
489
The appellants tried to argue that the FC decision in Rama Chandran v The
Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 was wrong & should not be
followed. The CA disagreed & held that it is bound to follow & apply the law as stated
by the majority in Rama Chandran even if it suffers from any infirmity. It is a decision
of the apex court & constitutes binding precedent
When there are 2 conflicting precedents, a court may choose to follow either decision if it
originates from the CA or in decisions of the FC, follow the latest decision.
Dhalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1
Problems
i. Decisions of the Privy Council
The PC was the highest court of appeal in Malaysia until 1984.
Its decisions were binding on all courts in Malaysia when its decision was an appeal from
Malaysia or the decision was in a case from another country whose law in point was the same as in
Malaysia
Case: Wong See Leng v Sarawathy Amal (1954) 20 MLJ 141; Khalid Panjang & Ors v Public
Prosecutor (No 2) [1964] 30 MLJ 108
Appeals to the PC was abolished with effect from 1985
Q: does its decision in appeals from Malaysia bind Malaysian courts NOW?
It is said that only the FC, as the apex court, can decide whether to depart from the decisions.
Case: Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union [1995]
2 MLJ 317, the CA held that “…it is now open to the superior courts in Malaysia to refuse to
follow Fire Bricks (a PC case) if they choose to do so, without being guilty of judicial
impertinence or indiscipline”
Q: does its decisions of cases from another jurisdiction bind Malaysian courts now? No, merely
persuasive
ii) Decisions of Predecessor Courts of the Present Federal Court
Federal Court pre 1985, Supreme Court 1985-1994
Their decisions are currently binding on all courts in Malaysia until overruled by the present FC
Case : Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] 2 MLJ 520
the court held that it could not & should not differ from the decision of Alor Janggus
Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241
until it is reversed by the Federal Court
2. Horizontal Operation.
Pre 1985
Federal Court
High Court
High Court
of Sabah &
Malaya
Sarawak
The PC never considered itself bound by its own decisions
The FC
In civil cases, considered itself bound by its own decisions
In criminal cases, considered itself not bound by its own decisions
High Court of
High Court of
Sabah &
Malaya
Sarawak
The Supreme Court
Q: was the Supreme Court successor to the Federal Court & hence
bound by it? Is the Supreme Court also bound by its own precedents?
Case: Government of Malaysia & UEM v Lim Kit Siang [1988] 2
MLJ 12
The Supreme in majority held that it was not bound by the
decision of the Federal Court & their own prior decisions.
However, it was the held in minority that the Supreme Court is
the Federal Court under a different name & it should be bound by
Federal Court
High Court of
High Court of
Sabah &
Malaya
Sarawak
The Federal Court
S.2 of the Constitution (Amendment) Act 1994 & s.5(c) of the Courts of Judicature
(Amendment) Act 1994 renamed the Supreme Court as the Federal Court.
S.17 of the Courts of Judicature (Amendment)Act 1995 – any cases pending before the
Supreme Court on 23/6/1994 shall continue in the Federal Court & for that purpose the Federal
Court shall exercise the powers of the Supreme Court.
Q: is the current Federal Court the successor of the Supreme Court? Is it bound by the practice
& precedents of the Supreme Court?
Civil matters
Case: Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165
In civil matters, the FC does not regards itself as bound by the decisions of the SC
Case: Koperasi Rakyat Sdn Bhd v Harta Empat Sdn Bhd [2000] 2 AMR
2311
The FC should … consider itself … bound by its previous decisions.
However, the FC can depart from its previous decisions where “… it
appears clear that the earlier decision was given in defiance of an express
statutory provision that was overlooked by this court. Equally where a
serious error … that has distorted the law…”
Criminal matters
The FC considers itself bound by the decision of the SC
Case: Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514
Case: Arulpragasan a/l Sandaraju v Public Prosecutor [1997] 1 MLJ 1;
Dhalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1
The Court of Appeal
S.13 of the Constitution (Amendment) Act 1994 added Clause (1B)
to Art. 121 to the Federal Constitution – establishing the Court of
Appeal
Is the Court of Appeal bound by its own predecessor?
Case: Kesultanan Pahang v Sathask Realty Sdn Bhd
It is bound by its previous decisions
Case: Kwong Yik Bank Berhad v Ansonia Management
Associates Sdn Bhd [1999] 1 AMR 377
C. Decisions from Other Common Law Countries
Persuasive only
Case: Jamil bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217
which followed the decision in Lim Poh Choo v Camden & Islington
Area Health Authority [1980] AC 174 which held that it for the courts
of Malaysia to decide, subject always to the statute law of the Federation,
whether to follow English case law. Modern English authorities may be
persuasive but are not binding.
Keep in mind the provisions of ss 3(1), 5(1) & 5(2) of the Civil Law Act
1956 (Revised 1972)
STATUTORY
INTERPRETATION
i. Mischief Rule
• Heydon’s case (1584) 3 Co Rep 7
To truly interpret a statute, courts would have to consider:-
The common law before the Act
What was the mischief & defect that the common law did not remedy
What was the remedy that was intended by the Parliament
What was the true reason for the remedy
Case: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Another Appeal [1996] 1 MLJ
481
Issue was the interpretation of s.20(3) of the Industrial Relations Act 1967 which confers on the
Minister of Labour and Manpower the discretion whether or not to refer an industrial dispute to
the Industrial Court and whether in exercising this discretion, the Minister made a decision in
the legal sense and hence was subject to judicial review.
The court examined the position at common law and the legislative history of the Act, as per
Heydon’s case. As such, it can be seen that the Parliament had intended to elevate the weak and
subordinate position of a workman at common law to a much stronger position. Parliament had
wanted to alter the employer-workman relationship which was a consensual one, capable of
termination by the employer at all to one which gives the workman security of tenure. Hence,
s.20 has to be given a broad and liberal interpretation, one that would advance rather than
hinder the purpose for which the Act was enacted.
CA: yes, the Minister would have made a decision in the legal sense and hence was subject to a
judicial review.
ii) Literal Rule
Dominant approach to statutory interpretation
Words in a statute must be given their literal or grammatical (in simple
language, plain or ordinary) meaning (and technical words, their ordinary
technical meaning), whatever the outcome
Case: Public Prosecutor v Chin Kim Foo (unreported)
S.19 of the Copyright Act 1987 was up for interpretation.
• In Kon Fatt Kiew v PP [1935] 1 LNS 28, the
appellant was charged with being in possession of
rubber in excess of the amount permitted by s 1
(i) of the Rubber Regulation Enactment 1934.
LITERAL • The issue was whether ‘scrap rubber’ came
RULE within the definition of ‘rubber’ in s. 2 of the
Enactment.
• Held: when the meaning of a clause of a statute is
clear, that meaning must be given to the language
of the Enactment.
• The appellant was rightly convicted.
• See also: Pendaftar Pertubuhan v Datuk Justin
Jinggut [2013] 3 MLJ 16.
Case: Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513
Does the word “person” in s.6(1) of the Sultanate Land Enactment 1919 mean only natural persons or
can it include artificial persons eg corporations?
The FC: generally, “persons” means natural persons & can include artificial person. But after looking
at the whole statute, it is repugnant for it to include artificial persons. Hence “persons” in s.6(1) of the
Enactment should be confined only to natural persons.
• In Leaw Mei Lee v Attorney-General & Ors [1967], the
petitioner was a law graduate doing her pupilage in a
legal firm. The time prescribe for pupillage is 12 months
unless he/she had obtained a certificate issued by
University Malaya that he/she had satisfactorily
completed a post-graduate course and the period of
pupilage will be reduced by 6 months. Having obtained
her post-graduate certificate, she applied to be admitted
GOLDEN to the Bar but was opposed by the Bar Council on the
ground that the statue required the post-graduate course
RULE to be done previous to the reading in chambers.
c)Noscitur a Sociis
A word derives its meaning from its context
PRESUMPTIONS
Internal Aids
i. Short Title
ii. Long title, Preamble and Schedule
iii. Marginal or Side Notes
iv. Punctuation
v. Illustrations
External Aids
Dictionaries, interpretation statutes, Hansard
CUSTOMARY LAW
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Definition: “…a regular pattern of social behavior which has been accepted by the bulk of a given society as binding
upon its members, because such behavior has been found to be beneficial not only as a means of encouraging inter-
personal relations among them, but also being beneficial for maintaining a cohesive society for their individual and
collective betterment”