Elements of Law

BDAU2103
ELEMENTS
OF LAW
Chitra Latha Ramalingam
Copyright Open University Malaysia (OUM)

Project Directors: Prof Dato Dr Mansor Fadzil
Prof Dr Wardah Mohamad
Open University Malaysia
Module Writer: Chitra Latha Ramalingam
Moderator: Rozanah Abd. Rahman

Universiti Putra Malaysia
Developed by: Centre for Instructional Design and Technology

Open University Malaysia
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Lot 47-48, Jalan SR 1/9, Seksyen 9,
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43300 Seri Kembangan, Selangor Darul Ehsan
First Edition, May 2008

Copyright Open University Malaysia (OUM), July 2010, BDAU2103
All rights reserved. No part of this work may be reproduced in any form or by any means
without the written permission of the President, Open University Malaysia (OUM).

Table of Contents
Course Guide ix-x
Topic 1 Nature of Law

1.1 Nature of Law 1
1.2 Distinction between Rules and Laws 3
1.3 The Need for Laws 4
1.4 Relationship between 'Justice' and 'Law' 4
1.5 Custom, Morality and Law 96
1.6 Law, the State and the Constitution 10
Summary 17
Topic 2 Classification of Law 18

2.1 Classification of Law 18
2.1.1 Civil Law System versus Common Law System 19
2.1.2 Theocratic Law 20
2.2 Difference between Public Law and Private Law 22
2.3 Substantial and Procedural Law 29
2.4 Differences between International Law and National Law 29
2.5 A Brief Summary of the Types of Law 33
2.5.1 Growth of Public Law 33
2.5.2 Types of Public Law 35
2.5.3 Types of Private Law 44
Summary 49
Topic 3 Evaluation of Sources of Malaysian Law 50

3.1 Reception of English Law in Malaysia 50
3.1.1 Strait Settlements Acts 52
3.1.2 The Malay States 55
3.1.3 Sabah and Sarawak (Borneo States) 58
3.2 Common Law and Equity 59
3.2.1 Origins of English Law 60
3.2.2 The Development of Common Law 60
3.3 The Development of Equity 64
3.3.1 The Reception of Common Law in Malaysia 69
3.3.2 The Call for a Malaysian Common Law 70
Summary 71

iv TABLE OF CONTENTS
Topic 4 Legislation 72
4.1 Written Law 72
4.1.1 Federal and State Constitution 81
4.1.2 The Federal Government 82
4.1.3 State Governments 82
4.1.4 Legislative Powers 85
4.1.5 Delegated Legislation and Subsidiary Legislation 89
4.2 Unwritten Law 90
4.3 Islamic Law 91
4.3.1 Sources of Islamic Law 91
4.3.2 The Recognition of Islamic Laws 91
4.3.3 The Position of Islamic Law in the Constitution 99
Summary 97
Topic 5 Judiciary 98
5.1 Subordinate Courts 99
5.1.1 Penghulu Court 100
5.1.2 Magistrate Court 100
5.1.3 Juvenile Court 102
5.1.4 Sessions Court 103
5.2 Subordinate Courts in East Malaysia 104
5.2.1 Native Courts 104
5.3 Superior Courts in Malaysia 111
5.3.1 Federal Court 112
5.3.2 Court of Appeal 113
5.3.3 High Court 114
5.4 The Industrial Court 115
Summary 116
Topic 6 Judicial Precedent 117

6.1 Judicial Precedent 117
6.1.1 Stare Decisis 118
6.2 Why are Precedents Useful? 121
6.3 Problems with the Doctrine of Precedent 121
6.4 The Important Elements
(Radio Decidendi and Obiter Dicta) 122
6.4.1 Ratio Decidendi 122
6.5 The Rules of Precedent 128
6.5.1 Judicial Decision Making 128
6.5.2 How to Avoid Precedents 133
6.6 Principles of Judicial Precedent 136
Summary 137

TABLE OF CONTENTS v
Topic 7 Statutory Interpretation 138

7.1 Statutory Interpretation 138
Summary 157
Tutorial Questions 158
Answers 159

vi TABLE OF CONTENTS

COURSE GUIDE

COURSE GUIDE W ix
COURSE GUIDE DESCRIPTION

You must read this Course Guide carefully from the beginning to the end. It tells
you briefly what the course is about and how you can work your way through
the course material. It also suggests the amount of time you are likely to spend in
order to complete the course successfully. Please keep on referring to Course
Guide as you go through the course material as it will help you to clarify
important study components or points that you might miss or overlook.
INTRODUCTION
BDAU2103 Elements of Law is one of the courses offered by the Faculty of
Business and Management at Open University Malaysia (OUM). This course is
worth 3 credit hours and should be covered over 15 weeks.
COURSE AUDIENCE
This course is compulsory for students undergoing Diploma in Management. It is
also a basic major course for students undergoing Diploma in Human Resource
Management.
As an open and distance learner, you should be acquainted with learning

independently and being able to optimise the learning modes and environment
available to you. Before you begin this course, please confirm the course material,
the course requirements and how the course is conducted.
STUDY SCHEDULE
It is a standard OUM practice that learners accumulate 40 study hours for every
credit hour. As such, for a three-credit hour course, you are expected to spend
120 study hours. Table 1 gives an estimation of how the 120 study hours could be
accumulated.

x X COURSE GUIDE
Table 1: Estimation of Time Accumulation of Study Hours
STUDY
STUDY ACTIVITIES
HOURS
Briefly go through the course content and participate in initial discussion 3
Study the module 60
Attend 3 to 5 tutorial sessions 10
Online participation 12
Revision 15
Assignment(s), Test(s) and Examination(s) 20
TOTAL STUDY HOURS ACCUMULATED 120
LEARNING OUTCOMES
By the end of this course, you should be able to:
1. Describe the nature and the classifications of law;
2. Appraise the sources of Malaysian law;
3. Differentiate between the superior courts and the subordinate courts in
Malaysia;
4. Analyse the doctrine of judicial precedent; and
5. Apply the common law approaches to statutory interpretation.
COURSE SYNOPSIS
This course is divided into 7 topics. The synopsis for each topic is presented
below:
Topic 1 and 2 introduce the students to law. This will entail a discussion as to the
nature of law. The importance of custom and morality to law will be explained.
The students will also be exposed to the relationship between law, the state and
the constitution. Finally how law may be generally classified will be discussed.
Topic 3 and 4 discuss the different sources of law. On reading these topics you
will notice that there are four main sources of law. The first two (common law
and equity) really belong to one category now as they are both law made by
courts. In the past however, a big difference between the two existed. The next

COURSE GUIDE W xi
source of law which is the written law can be divided into two categories-Acts of
parliament and delegated legislation. The last source of law is the Islamic law.
Topic 5, 6 and 7 will look at the court hierarchy in Malaysia. Associated with this
area is the doctrine of precedent. A detailed examination into the hierarchy of
courts in Peninsular Malaysia and East Malaysia will be taken. This will be
followed with an examination of when exactly a particular court is bound to
follow an earlier decision. At the end of the topics, the students should appreciate
that the doctrine of precedent is not based on stagnation. This provides the judge
with the flexibility needed in allowing even the common law to develop and
adjust to accommodate our ever changing society. The doctrine of precedent is
there to provide for consistency in the law and not to strangle the development of
common law.
TEXT ARRANGEMENT GUIDE

Before you go through this module, it is important that you note the text
arrangement. Understanding the text arrangement should help you to organise
your study of this course to be more objective and more effective. Generally, the
text arrangement for each topic is as follows:
Learning Outcomes: This section refers to what you should achieve after you
have completely gone through a topic. As you go through each topic, you should
frequently refer to these learning outcomes. By doing this, you can continuously
gauge your progress of digesting the topic.
Self-Check: This component of the module is inserted at strategic locations

throughout the module. It is inserted after you have gone through one sub-
section or sometimes a few sub-sections. It usually comes in the form of a
question that may require you to stop your reading and start thinking. When you
come across this component, try to reflect on what you have already gone
through. When you attempt to answer the question prompted, you should be
able to gauge whether you have understood what you have read (clearly,
vaguely or worse you might find out that you had not comprehended or retained
the sub-section(s) that you had just gone through). Most of the time, the answers
to the questions can be found directly from the module itself.
Activity: Like Self-Check, activities are also placed at various locations or junctures
throughout the module. Compared to Self-Check, Activity can appear in various
forms such as questions, short case studies or it may even ask you to conduct an
observation or research. Activity may also ask your opinion and evaluation on a
given scenario. When you come across an Activity, you should try to widen what
you have gathered from the module and introduce it to real situations. You should

xii X COURSE GUIDE
engage yourself in higher order thinking where you might be required to analyse,
synthesise and evaluate instead of just having to recall and define.
Summary: You can find this component at the end of each topic. This component
helps you to recap the whole topic. By going through the summary, you should
be able to gauge your knowledge retention level. Should you find points inside
the summary that you do not fully understand, it would be a good idea for you
to revisit the details from the module.
Key Terms: This component can be found at the end of each topic. You should go
through this component to remind yourself of important terms or jargons used
throughout the module. Should you find terms here that you are not able to
explain, you should look for the terms from the module.
References: References is where a list of relevant and useful textbooks, journals,

articles, electronic contents or sources can be found. This list can appear in a few
locations such as in the Course Guide (at References section), at the end of every
topic or at the back of the module. You are encouraged to read and refer to the
suggested sources to elicit the additional information needed as well as to
enhance your overall understanding of the course.
PRIOR KNOWLEDGE
There is no prerequisite requirement for learners prior taking this subject.
ASSESSMENT METHOD
The assessment method and evaluation distribution for this course is as follows:
Mid Term 40%
Final Examination 60%
TOTAL 100%

COURSE GUIDE W xiii
REFERENCES
Lee Mei Pheng (2001). General Principles of Malaysian Law (4th ed.). Kuala
Lumpur: Fajar Bakti Sdn Bhd.
Wan Arfah Hamzah & Ramy Bulan (2001). An Introduction to the Malaysian
Legal System (1st ed.). Kuala Lumpur: Fajar Bakti Sdn Bhd.
Wu Min Aun (1999). The Malaysian Legal System, (2nd ed.). Longman Malaysia
Harding A J, Law, Government and the Constitution in Malaysia, London,
Kluwer, 1996.
Hickling R. H. (1991). Essays on Malaysian Law, KL, Pelanduk.
Hickling R. H. (2001). Malaysian Law (An Introduction to the Concept of Law in

Malaysia), KL, Pelanduk.
Wu Min Aun (1998). Public Law in Contemporary Malaysia, Malaysian Law

Series, Longman.
Hickling, Reginald Hugh & Wu Min Aun (1995). Conflicts of Laws in Malaysia,
Singapore, Butterworths Asia.

TOPIK 2 KAEDAH DAN TEKNIK W 17

Topic X Nature of Law
1
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain the nature of law;
2. Differentiate the relationship between custom, morality and law;
3. Evaluate the link between law, the state and the constitution; and
4. Summarise the need of law.
X INTRODUCTION
It is important to understand and appreciate the foundation of law. Therefore,
this unit will discuss the nature of law, custom, morality and law; and the
relationship between the three. It will go on to discuss the Law, the State and the
Constitution.
1.1 NATURE OF LAW
SELF-CHECK 1.1
Before proceeding to the first topic of the module, think of the following
question. Based on your understanding of the general interpretation of
law, how would you interpret law? Do you know to what extent the
law is important in our life?

2 X TOPIC 1 NATURE OF LAW
"Wherever Law ends, Tyranny begins." (Second Treatise of Government, sec.

202.)
Over the centuries, there have been numerous attempts to produce a universally
acceptable definition of 'Law'. Let us have look at the following definitions
provided by various known historians, philosophers and leaders:
As you may clearly see, these definitions suggest that there are no clear
agreements on what is 'Law'. Each writer has his own view, and each view is
based on the writer's own moral, political, religious and ethical point of view and
the influence of the society in which they lived. While there is lack of agreement

TOPIC 1 NATURE OF LAW W 3
on a precise definition, two common themes identified in the definitions

provided are:
(a) the idea of control by humans; and
(b) the idea of human conduct being regulated by a superior authority or power
(usually the state).
While it is difficult to provide a precise definition of 'law', a useful general

definition could be:
These rules have been established by the people through their parliamentary
representatives (in the form of statute law) and by the judges in our courts (in the
form of common law) and are legally enforceable. They set standards of conduct
between individuals and other individuals, and between individuals and the
government.
1.2 DISTINCTION BETWEEN RULES AND LAW
SELF-CHECK 1.2
We were taught to respect the law since we were in primary school and
our lives are governed by law. At the same time, we are asked to obey and
follow the rules wherever we go and in what ever we do in our everyday
life. Both law and rules are our guidance but do you know the differences
between these two?
While it may be said that the law is a set of rules, it doesn't automatically follow
that all 'rules' are (or will be) 'law'. There are many rules governing daily
behaviour that are not laws. They are:
(a) rules controlling sport;
(b) rules regulating social behaviour; and
(c) rules in a family.

In determining whether a 'rule' is 'law', it is necessary to consider two major

questions as shown in Figure 1.1:
Figure 1.1: Two major questions is determining 'rule' is 'law'
1.3 THE NEED FOR LAWS
SELF-CHECK 1.3
Can you imagine what would happened if there are no laws to govern our
lives? Could you anticipate its effect on our country, economy and society?
A point to ponder.
Without law in a given society, anarchy would prevail. The need and importance of
law can be seen in the aftermath of the bloody May 13th racial riots of 1969, when a
state of emergency was proclaimed. BERNAMA also has its own website and this
enables the public to access to news and information directly from BERNAMA.
1.4 RELATIONSHIP BETWEEN 'JUSTICE' AND

'LAW'
A concept that is closely identified with law is justice. Like 'law', the term 'justice'
is difficult to define. For example, it can be used in a number of different contexts
such as shown in Figure 1.2.
Figure 1.2: Different contexts of term 'justice'

They may or may not all coincide, depending on the situation and the context in
which they were used. For example, the fine for parking in a 'No Parking Zone' is
the same whether you are rich or poor. This may be considered legally and
morally just, as everyone is seen to be equal in the eyes of law. But the person
who is rich can more easily afford to pay the fine than the person who is poor.
Thus, the question then arises of whether that is morally just.
But this does not make the task of defining the concept of justice any easier.
However, a common agreement as to the terms 'fair' and 'right' exists. As times
change, so do the attitudes and values of society and the individuals within that
society. For example, in today's society, co-habitation by couples (not necessary
same sex) is not frowned upon by the society like it was used to. This too
depends on which society it is being referred to. This is in the context of the
western society. As Lord Denning, one of England's greatest judges, suggested:
Law embodies what society believes is right or fair. Justice in our society means
that everyone is entitled to a fair trial under a set of rules that applies equally to
both sides in an open court. However, it is unrealistic to suggest that our legal
system can be absolutely full proof.
Our legal system recognises its fallibility in a number of ways:
(a) A court hierarchy allows a person, within certain defined limits, to appeal to
a higher court where it appears that there has been a miscarriage of justice or
an error in law.
(b) Writ of habeas corpus, where the court decides on the legality of a person's
imprisonment when they are being held for no stated cause.
On the basis of the legal system that Malaysia inherited from England, Malaysian
society has developed a reasonably fair system of rights and duties. Where

everyone has their rights infringed, they may seek relief through the law. This
may take the form of a civil action where they may seek remedy such as, the form
of monetary compensation (or damages) from the other party. Or it may be by
way of a complaint to the police, resulting in a criminal prosecution against the
other party and perhaps their gaoling by the courts. It may even be an action in
both civil and criminal law.
Activity 1.1
Identify these statements and determine whether they are 'law' or 'rules'.
Tick (9) where most appropriate.
No. Statement Law Rules

1. No smoking in the public toilet, hospitals and
petrol station.
2. Do no drink alcohol while you are driving.
3. Please renew your driving license.
4. You must wear the school uniform whenever you
go to school.
5. You must not make noise when you are in the
mosque.
6. You must not make noise when you are in the
mosque.
7. You will be prosecuted if you are caught
purchasing pirated CD's.
8. Your application for loan will be rejected if you are
found to have a criminal history.
1.5 CUSTOM, MORALITY AND LAW
SELF-CHECK 1.4
Whenever we talk about custom, it will remind us of our older
generation where their lives are filled and governed by custom and
tradition. However, when we focus our attention to morality, it is our
religion that taught us with what is moral value. Law, on the other hand is
the one that rules not only our individual life but the country, economy
and society. All are important to our lives, having said, before moving on
the topic, can you think of the relationship between custom, morality and
law?

Often, these three concepts and beliefs are generalised and codified in a culture or
group, and thus served to regulate the behaviour of its members. Conformity to
such codification may also be called morality, and the group may depend on
widespread conformity to such codes for its continued existence. A "moral" may
refer to a particular principle, usually as informal and general summary with
respect to a moral principle, as it is applied in a given human situation.
The adage "you cannot legislate morality" is false in that every statute mandates
or restraint some acts in order to preserve a moral value. The law requires drivers
to be licensed as a means of protecting human life. Littering is illegal because of
the value we place on conserving a beautiful and healthy environment.
In another sense, however, it is true that morality cannot always be subject to law.
Nor should it be. A society in which every good deed or noble act is mandated by
law would be tyranny. Meaningful moral action requires reflection, choice, even
failure in order for people to learn and grow.
Morality is endowed with yet another meaning when we say "moral philosophy",
but then, what we really mean is "ethics" or "ethical theory". Making this
distinction will be helpful, since we know that many people have conceptions
about right and wrong without ever determining why, but simply accepting
them. To most psychologists, the thing called "conscience" is some kind of an
overlay of impressions and prohibitions of musts, ought and don'ts which society
has imprinted on the sensibilities of people, so that there is no standard of right
and wrong except what people think and are taught to believe.
Law is not the beginning place, nor is it the ending place when it comes to ethics.
Our moral ideas often shape the character of our laws. Criticism of laws and
proposals for change in our laws are often based on a shared moral ideal that is
not being achieved.

It has been suggested that common law is the crystallisation of ancient common
customs; the judiciary in the Middle Ages, through their historic travels
accomplished this. In certain circumstances, parties may assert the existence of
customary practices in order to support their case.
It is through public records, opinions of persons who are likely to know the
existence of such customs and traditions also village oral traditions for the
existence of customs may be proved.
Customs may be recognised if "there is proof of the existence of the custom as far
back as living witnesses can rememberin absence of any sufficient rebutting
evidence"
As per Halsbury's Laws of England, vol 12, 4th edn., para 422, quoted in the case
of Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn. Bhd. & Ors [2001].
The English case of Egerton v Harding (1974) laid down the requirements as
shown in Figure 1.3 that must be satisfied in order for a local custom to be
recognised:

Figure 13: The requirements for local custom to

be recognised
Law develops as society evolves. Historically, the simplest societies were tribal.
The members of the tribe were bonded together initially by kinship and worship of
the same Gods. Even in the absence of courts and legislature, there was law a blend
of custom, morality, religion, and magic. The visible authority was the ruler, or
chief; the ultimate authorities were believed to be the Gods which were revealed in
the forces of nature and in the revelations of the tribal head or the priests.
Wrongs against the tribe, such as sacrilege or breach of tribal custom, were met with
group sanctions including ridicule and hostility, and, the tribe members thought,
with the wrath of the gods. The gods were appeased in ritualistic ceremonies ending
perhaps in sacrifice or expulsion of the wrongdoer. Wrongs against individuals, such
as murder, theft, adultery, or failure to repay a debt, were avenged by the family of
the victim, often in actions against the family of the wrongdoer. Revenge of this kind
was based on tribal custom, a major component of early law.
Bruce Benson has concluded that customary legal systems tend to share the
following basic characteristics:
(a) a strong concern for individual rights;
(b) laws enforced by victims backed by reciprocal agreements;

(c) standard adjudication procedures established to avoid violence;

(d) offences treated as torts punishable through economic restitution;
(e) strong incentives for the guilty to submit to the prescribed punishments due
to the threat of social ostracism; and
(f) legal change by means of an evolutionary process of developing customs
and norms.
Rules and laws need not be created or enforced by a central authority. Customary
law has many advantages and continues to govern a wide range of social
interactions and to promote order in many areas of modern society.
Unfortunately,ACTIVITY
today's intellectual climate largely fails to recognise the existence
and potential for customary law creation.
One of the fundamental legal precepts of modern civilisation is that no person

must suffer punishment or pay damages for any conduct not expressly forbidden
by law. This precept is reinforced by the fact that the legal rights of both
individuals and corporate bodies should be determined through the courts. This
basic rule of law is at the root of our present legal system. However, with the
need for decentralisation, judicial or quasi-judicial powers or authority have been
given to officials who stand more or less in connection with the government of
the day and who may be subject to government influence. However, the decisions
of such delegates are still subject to the scrutiny of the courts by way of judicial
review through the use of what is termed Administrative Law. Administrative
Law is concerned with those rules of law which relate to the exercise of the
executive government's powers and privileges, as well as those of public and
statutory authorities.
ACTIVITY 1.2
Based on your understanding on what you have just learnt list three
requirements which need to be satisfied in order for custom to be
recognised.
1.6 LAW, THE STATE AND THE

CONSTITUTION
A country with a federal system like Malaysia has a federal government (in
Wilayah Persekutuan) as well as state governments. Both have law making
powers. The document that created our federal system was the Malaysian
Constitution which is known as the Federal Constitution. The constitution makes
provision for the division of law-making power between the federal and state
government. A legal system administered almost entirely on the basis of a

political unit is known as a state. Malaysia has thirteen states and in every state
there is a government. Malaysia has a written constitution. The definition of what
is a constitution can be seen in the following.
A constitution is a settled arrangement by which a country's parts or elements,

within a geographical district, combine themselves due to some common traits or
particular features of mind or character of those in the combined group (a
country) and which distinguishes it from other combined groups (other
countries). It is not so much that a constitution of a country determines its nature
and character; but, rather, that a constitution reflects a country's nature and
character. It is a mode in which a state is constituted or organised, and, by which,
its physical nature or character is determined and which ultimately determines a
country's healthiness, strength and vitality.
In the case of a written Constitution, the name is sometimes applied to the

document embodying it. In either case it is assumed or specifically provided that
the constitution is more fundamental than any particular law, and contains the
principles with which all legislation must be in harmony.
Most everything that goes into the makeup of a constitution (the traits and
character of one constitution, when compared with others, will be as varied as the
people it is intended it should govern) can come, and go, and be modified in

degree; but, as sine qua non, it governs all who occupy a geographical area of a
country.
Ernest Renan (1823-1892) was an important French theorist who wrote about a
variety of topics. His famous essay "What is a Nation?" was first delivered as a
lecture at the Sorbonne in 1882. It continues to be an important influence on
scholars. One can see Renan's influence in the scholarship of people like Benedict
Anderson.
Ernest Renan said this:
A nation is a soul, a spiritual principle. Two things, which in truth are but one,
constitute this soul or spiritual principle. One lies in the past, one in the
present. One is the possession in common of a rich legacy of memories; the
other is present- day consent, the desire to live together, the will to perpetuate
the value of the heritage that one has received in an undivided form. Man,
Gentlemen, does not improvise. The nation, like the individual, is the
culmination of a long past of endeavours, sacrifice, and devotion. Of all cults,
that of the ancestors is the most legitimate, for the ancestors have made us
what we are. A heroic past, great men, glory (by which I understand genuine
glory), this is the social capital upon which one bases a national idea. To have
common glories in the past and to have a common will in the present;
are the essential conditions for being a people. One loves in proportion to the
sacrifices to which one has consented, and in proportion to the ills that one has
suffered. One loves the house that one has built and that one has handed
down. The Spartan song-"We are what you were; we will be what you are" - is,
in its simplicity, the abridged hymn of every patrie.
More valuable by far than common customs posts and frontiers conforming to
strategic ideas is the fact of sharing, in the past, a glorious heritage and
regrets, and of having, in the future, [a shared] programme to put into effect,
or the fact of having suffered, enjoyed, and hoped together. These are the
kinds of things that can be understood in spite of differences of race and
language. I spoke just now of "having suffered together" and, indeed,
suffering in common unifies more than joy does. Where national memories are
concerned, griefs are of more value than triumphs, for they impose duties, and
require a common effort.

A nation is therefore a large-scale solidarity, constituted by the feeling of the

sacrifices that one has made in the past and of those that one is prepared to
make in the future. It presupposes a past; it is summarized, however, in the
present by a tangible fact, namely, consent, the clearly expressed desire to
continue a common life. A nation's existence is, if you will pardon the
metaphor, a daily plebiscite, just as an individual's existence is a perpetual
affirmation of life. That, I know full well, is less metaphysical than divine right
and less brutal than so called historical right. According to the ideas that I am
outlining to you, a nation has no more right than a king does to say to a
province: "You belong to me, I am seizing you." A province, as far as I am
concerned, is its inhabitants; if anyone has the right to be consulted in such an
affair, it is the inhabitant. A nation never has any real interest in annexing or
holding on to a country against its will. The wish of nations is, all in all, the
sole legitimate criterion, the one to which one must always return.
We have driven metaphysical and theological abstractions out of politics.

What then remains? Man, with his desires and his needs. The secession, you
will say to me, and, in the long term, the disintegration of nations will be the
outcome of a system which places these old organisms at the mercy of wills
which are often none too enlightened. It is clear that, in such matters, no
principle must be pushed too far. Truths of this order are only applicable as a
whole in a very general fashion. Human wills change, but what is there here
below that does not change? The nations are not something eternal. They had
their beginnings and they will end. A European confederation will very
probably replace them. But such is not the law of the century in which we are
living. At the present time, the existence of nations is a good thing, a necessity
even. Their existence is the guarantee of liberty, which would be lost if the
world had only one law and only one master.
Through their various and often opposed powers, nations participate in the
common work of civilization; each sounds a note in the great concert of
humanity, which, after all, is the highest ideal reality that we are capable of
attaining. Isolated, each has its weak point. I often tell myself that an
individual who had those faults which in nations are taken for good qualities,
who fed off vainglory, who was to that degree jealous, egotistical, and
quarrelsome, and who would draw his sword on the smallest pretext, would
be the most intolerable of men. Yet all these discordant details disappear in
the overall context. Poor humanity, how you have suffered! How many trials
still await you! May the spirit of wisdom guide you, in order to preserve you
from the countless dangers with which your path is strewn!
Let me sum up, Gentlemen. Man is a slave neither of his race nor his language,
nor of his religion, nor of the course of rivers nor of the direction taken by
mountain chains. A large aggregate of men, healthy in mind and warm of

heart, creates the kind of moral conscience which we call a nation. So long as
this moral consciousness gives proof of its strength by the sacrifices which
demand the abdication of the individual to the advantage of the community, it
is legitimate and has the right to exist. If doubts arise regarding its frontiers,
consult the populations in the areas under dispute. They undoubtedly have
the right to a say in the matter. This recommendation will bring a smile to the
lips of the transcendants of politics, these infallible beings who spend their
lives deceiving themselves and who, from the height of their superior
principles, take pity upon our mundane concerns. "Consult the populations,
for heaven's sake! How naive! A fine example of those wretched French ideas
which claim to replace diplomacy and war by childishly simple methods."
Wait a while, Gentlemen; let the reign of the transcendants pass; bear the
scorn of the powerful with patience. It may be that, after many fruitless
groupings, people will revert to our more modest empirical solutions. The
best way of being right in the future is, in certain periods, to know how to
resign oneself to being out of fashion.
The first notion of what a constitution is, is derived from the OED, "to settle, fix,
or enact; to establish; to form or compose: to make up; to make a thing what it is."
A constitution is what a country is. While the essentials may well be written up in
one document, no one document can be comprehensive in describing every
tradition and all the cultural aspects of a country's makeup. This is the reason,
why that written constitutions are expected to be short; they need only stick to
the essentials. Constitutions should settle and fix values such as life and liberty;
and, critically, the form of government it selects for itself.
In the dictionary, Government, has been defined as: "regulation; control; restraint;
the exercise of authority; direction and restraint exercised over the actions of men
in communities, societies, or states; the administration of public affairs; the
system of policy in a state; the mode or system according to which the sovereign
powers of a nation, the legislative, executive, and judicial powers, are vested and
exercised; etc. etc."
However, nowhere, in this dictionary, does it say that government is a biological

identity; it's not a person, or anything else that is capable of individualistic
thought; it's a theoretical concept.

In Malaysia, the Malaysian Constitution is called the Federal Constitution. The

Federal Constitution is the supreme law making body.

Previously the roots of "The Rule of Law" sink deep into the days when there was
belief in the supernatural by most people. However, these days, it is understood
and asserted that the doctrine is derived from theories of natural law; and, is
applied when there is an exercise of arbitrary power. Citizens of any country,
including elected and appointed officials of government, must be subordinated to
impartial and well-defined principles of law.
In Democratic countries, the concept that the day-to-day exercise of executive

power must conform to general principles as administered by the ordinary
courts. A government must be ruled by law and not the law ruled by the
Government. The undisputed authority when it comes to the definition and
analysis of the Rule of Law is, of course, A. V. Dicey, and we now turn to him:
Dicey's Law of the Constitution, 1885 (London: MacMillan, 9th ed., 1950), p. 194.
Dicey, incidentally, was very much concerned about governmental incursions
being made into The Rule of Law.
The main reason a country implements a constitution is to curb abuses of any

group, including government, through the misuse of power.

EXERCISE 1.1
What is the meaning of morality?
Law has various definitions however in any definition there exists a common
trait.
Law is a binding custom or practice of a community: a rule of conduct or
action prescribed or formally recognised as binding or enforced by a
controlling authority: the whole body of such customs, practices, or rules.
Custom and Morality determines laws of a country.
Constitution is the most powerful and important source of law.
Different authorities such as federal, state, and local governments create laws.

Topic X Classification
2 of Law
LEARNING OUTCOMES
1. Explain the four major types of law in the world;
2. Differentiate between the three forms of common law; and
3. Apply the concepts of public and private laws.
X INTRODUCTION
There are three major sources of law in the world. Malaysia adopts the common
law system and also the syariah law where applicable. The other type of system
which is the civil law system is widely practiced system in the European
Countries. There are a few types of law in the common law system which will be
discussed here.
2.1 CLASSIFICATION OF LAW
SELF-CHECK 2.1
Apart from Civil law, can you think of other legal system available in our
country?
National legal systems are very important for businesses as it lays down the
regulatory framework. Legal systems in the world are based on the values of
diverse cultures. It is generally accepted that legal systems are grouped into
families or models even though it is diverse. There are three major legal systems
in the world. They are the common law legal system, the civil law legal system
and the theocratic system.

TOPIC 2 CLASSIFICATION OF LAW 19
2.1.1 Civil Law System versus Common Law System

Two legal systems can be identified in the Western world. One is Civil Law,
which is based on the law of Rome, and which in turn forms the basis of most of
the legal systems in Europe; and is an underlying legal philosophy in many other
parts of the world (for example Japan and Latin America). It tends to emphasise
the rights of the parties to an action rather than the remedies available.
The other is common law, which forms the basis of English Law and is the system
used in Malaysia as well as in many other former English colonies. Unlike civil law,
common law was created by the decisions of judges on the basis of cases that came
before them, and it concentrated on remedies rather than rights. English judges were
more concerned with practical results in individual cases than theoretical outcomes.
The common law system is based on three forms which are shown in Figure 2.1.
Figure 2.1: Three forms of common law
While one major difference between the two systems lies on the emphasis placed
on rights and remedies. The second is the importance of judicial decisions in the
two systems. An important characteristic of the Common Law System is the
doctrine of precedent, which places great importance on previous judicial
decisions (especially those in higher courts). Civil Law System by contrast place
great emphasis on a complete code of written laws, with a comparative disregard
of individual judicial decisions.
The mode of procedure adopted by the two systems is also quite different. The
common law mode of procedure is described as 'accusatorial' (adversarial). The
parties, described as litigants, make 'accusations' at each other within the limits
establish by the rules of evidence. The judge does not participate, as a general
rule, in the examining process.
The judge's role is to decide on issues of fact (where there is no jury), and on
questions of law. The Civil Law mode of procedure is described as inquisitorial,
as here the judges are required to investigate the circumstances and get at the
truth. The judge will ask questions, and will often direct what sort of evidence he
20 TOPIC 2 CLASSIFICATION OF LAW
or she wants to hear. The role of the lawyer is to comment on the evidence and
cross-examine the judge's witnesses.
Table 2.1 summerises the differences between common law and civil law system:
Table 2.1: The Differences between Common Law System and Civil Law System
LAW JUDICAL DECISION MODE OF PROCEDURE

Common Law System Doctrine of Precedent 'Accusatorial' (adversarial)
Civil Law System Code of Written Law Inquisitorial
2.1.2 Theocratic Law

This is also known as religious law and is based on religious precepts for
example, the Islamic law. However, most Islamic countries have legal systems
that are a blend of Islamic Law and Common Law or Civil Law.
Types of Laws:
Four major types of laws are as shown in Figure 2.2.
Figure 2.2: Four major types of law
Two minor types of laws are as indicated in Figure 2.3.
Figure 2.3: The two minor types of laws

(a) Common Law

Common law forms the basis of, and is a main source for the legal system
and can be defined as:
Common Law became rigid and inflexible after the Provisions of Oxford
1258 when the Clerks of Chancery lost their ability to create new writs for
new wrongs.
b) Equity
Equity is considered by many as another main source within the legal
system; implies fairness and justice in the law. Equity is developed as a
result of the rigidity and inflexibility of the common law. In the event of
conflict with the Common Law, Equity will prevail. It should be noted that
equity is supplementary rather than a complete set of laws in its own right.
(c) Statute
Statute is also a main source, and the most important today, as the great
majority of law emanates from parliament. The role of the sovereign in the
law-making process has been supplanted by parliament, therefore, the
sovereign is probably no more than a figurehead in the parliamentary
process. Statute law overrules common law in the event of a clash between
the two.
(d) The Shariah (Islamic Law)

Islamic doctrine states that the legislator does not have the power to change
the rules which forms the core of Islamic law. It consists of particular ethical
imperatives to which any Islamic political or economic system must
conform. The fundamental ethical principles enunciated in the Qur'an must
limit Islamic states. Any perceived conflict between them must be an error
of our understanding; therefore, it must be resolved by reasoned discussion
and study (ijtihad).
(e) Merchant Law

Merchant law is a minor source of law which was developed out of both
local custom and international traditions based on Roman law.

(f) Ecclesiastical or Canon Law

Ecclesiastical or Canon law is important in the early development of
English Law, particularly in the area of criminal law, marriage and
succession of property. Today, the influence of ecclesiastical law is limited
to administrative and disciplinary matters relating to church members and
church property.
ACTIVITY 2.1
Explain why do Common Law and Statute are considered the main
sources of law? If there is a conflict between these two, which one do you
think should prevail? State your opinion.
2.2 DIFFERENCE BETWEEN PUBLIC LAW AND

PRIVATE LAW
SELF-CHECK 2.2
Whenever there is a legal dispute between two parties in their private
capacity, it will be classified as private law. On the other hand, what does
it mean by public law? Can you differentiate between these two?
The decision between public and private law is not always mutually exclusive
and some areas of law might appear to fit into both sides of the dichotomy. The
two areas are often defined in terms of the respective bodies of law which revolve
around the state as a public institution as opposed to law which focuses on the
private relations between ordinary members (both natural and corporate) of the
community.
Accordingly, public law is concerned in the main with the state, or with states,
or with relations between the public institutions which comprise the apparatus
of a state. It will be concerned as well with the relationship between states, as
also between a state in its public capacity and its citizens.


In political theory, distinction between the public and private spheres has been
taken to arise from classical liberal philosophies of government. These have
usually separated, with varying degrees of stringency, the public arena from the
private arena of activity of its citizens. In turn, this has been taken as a necessary
separation in order to protect the freedom or liberty of the individual (and
perhaps the arena of the free market activity) from restriction or intervention by
the state.
It may be that not all legal theorists would accept this basic separation of the
public and the private, at least not as if it were inviolable. Many have suggested,
for example, that this entails too strict a gap between the individual and his or her
obligations as a citizen. This, it is said contributes to a general disaffection of
citizens with, or their alienation from, the structures by which they are governed.
Indeed, some would argue further that it entrenches a conception of citizens who are
alienated from each other in the private sphere where they are engaged in
competitive relations with each other, thereby lacking a collective sense of identity
with each other as community. This is known as a failure of liberal (capitalist)
society, which might be corrected by showing that the individual is, in fact, only an
individual because his or her individual is a social creation in the first place.
Sometimes the classical republican model of citizenship, as one of total

involvement in social and political affair, is put forward as the vehicle for
criticism of this liberal disjunction between public and private and its attendant

social disaffection. Similarly, there were those who have suggested that the
dichotomy produces an inadequate conception of state itself and of the
constitution of such a state as a merely formal corporate entity or other than a
more substantive entity.
Such dichotomy has become, however, something of an accepted dualism. The

distinction does have certain functional relevance in that the principles of each
type of law are noticeably different in many respects. Although it is no doubt that
legal purists might suggests that the application of any legal principle be dealt
with on the same basis regardless of its public or private nature, this is hardly
what occurs in practice.
Due account is often taken of the fact that in dealing with areas of public law, the
exposition and application of the law is different. For example, taxing statutes need
to be dealt with for what they are attempting to levy financial impositions for public
purposes-not merely as attempts by one individual to extract penalties from another.
Constitutional provisions arguably ought to be interpreted by the courts as if they

are parts of a fundamental arrangement affecting the political structure of society
rather than as mere contracts or bargains negotiated between consenting individuals.
Indeed, this is how they are said to be legally interpreted. Public law would seem to
demand a different methodology from that which is applied in areas of private law.
Public law means those areas of law, which are focused with the relations
between domestic and foreign governments. The term also encompass areas of
law, which have an effect as between government as a public or political agency
and its citizen as such. When we talk about 'the government' here, we could have
referred to 'the state' or 'the Crown' instead and, for the time being, these terms
can be treated as interchangeable. Public law is therefore concerned with the
operation of the law at its most general and visible level.
There are six areas in public law as shown in Figure 2.4.
Figure 2.4: Areas for public law

Importantly, we include them as areas of public law because, in each case, we are
dealing with areas in which there is a sufficient measure of public interest. The
rights of individuals may be involved. Court intervention may even be required
in such area because the dispute in question involves original dispute between
particular individuals. But this is of no consequence because the nature of the
legal issues involved transcends the arena of merely private dispute. On the other
hand, private law is basically that body of law, which is concerned with relations
between members of a given legal system in terms of their private capacity.
Private law will include areas which are shown in Figure 2.5.

Figure 2.5: Private law areas
Again, this area will be discussed in detail as one goes on. No doubt, it will be a
little confusing if we say that areas of private law are potentially capable of
applying directly to governments, government agencies and so on. This is
because, apart from being a public agency, the state can also enter into dealings
and arrangements between its own agencies or with its citizens in a private
capacity. The state can be a party to a contract to sell or buy land, for example.
The state can, with some limitations, be held accountable for common law
wrongs such as negligence, or be a holder of private property.
What this means here is that it is necessary to recognise in the distinction between
public and private law some conception of what is termed the legal personality of
the actors involved. This requires some degree of digression in order to be
explained. Personality plays an important part in law although it is not an
altogether popular notion in current legal theory. It applies in a sense, which is
quite distinct from that which one finds in popular usage and in psychology.

In law, the notion of legal personality indicates certain characters or identities

which an individual might bear for the purposes of the legal system. In a general
sense, it indicates those individuals within the legal system who can be regarded
as the bearers of rights and duties or, perhaps, of rights and duties of a particular
sort.
The legal system recognises as persons, accordingly for the purposes of the law,
not only adult individual (or natural) human beings, but other 'pseudo-entities'
such as states, ministerial offices, the Crown, the Governor or Governor-General,
corporations, co-operatives and companies. These are sometimes called juristic
persons to distinguish them from natural persons.
They are given a theoretical existence in law which is distinct from the human
beings who happen to control them for the time being, yet they are regarded as
the bearers of rights and duties for the purposes of the legal system. In an
important sense, this means that these entities, especially those which perform
political functions, are themselves subject to the control of the law itself in that
the law regulates and can limit their activity.
This is one important sense of what is called the rule of law where all legal
persons within the legal system, including government entities and the Crown
itself, are subject to, and must act according to law.
The Crown is provided with certain special immunities and prerogatives as a

legal actor but it is itself constrained by legal principle. An example of the
attribution of legal personality to a private company is about the separate entity
theory of company law.
The juristic personality of companies and other corporations is now mostly a

matter of creation of the entity according to a statutory registration process, as is
now required under the Company Law in Malaysia.
At one time, incorporation of these commercial entities required a royal charter or

a special act of parliament, but the process became simplified in the mid-
nineteenth century as a result of the increasing demands of commercial investors
for the special benefits of investment in limited liability companies.
There are still some corporate entities, which are created by special acts of
parliament, for example, the various primary produce-marketing agencies, which
are established for limited purpose under state legislation.
Historically, however, the achievement of the status of corporate personality for

the likes of the Crown and ministerial offices was a matter of constitutional
theory as it gained acceptance over time.

One thing to be acknowledged in relation to both natural individuals and

corporate entities is that legal personality is something that can in effect 'come
and go'. Children will attain full legal personality upon attaining their maturity.
They may lose it again, in whole or in part, if they become mentally incapacitated
or imprisoned for a serious offence; the latter known somewhat dramatically as
'civil death'.
Naturally enough, natural persons will lose their legal personality when they die,
although in some jurisdictions there is a fictional continuation of their legal
personality for the purpose of the winding up of their affairs and the disposition
of their property to those entitled to it under the law of inheritance.
Similarly, the scope of their legal personality, and therefore their capacity to
undertake legal acts, will be considerably circumscribed in the event that they are
declared bankrupt by an order of a bankruptcy court on one of the limited
grounds available under special bankruptcy legislation.
A Corporation acquires legal personality by its creation, usually according to the

statutory process, which we have mentioned above. During its existence its right
to undertake certain legal acts will be limited, however corporations, unlike
natural individuals, cannot perform acts such as voting at elections and cannot
commit certain crimes for example, crimes that would be regarded as inconsistent
with their corporate status. At one stage, corporations could not act beyond their
stated constitutional objectives; if they did so, their actions would be pronounced
ultra vires (beyond power).
This limitation has now been relaxed in relation to those entities incorporated
under the Company Law in Malaysia, although it might still apply in respect of
other entities such as co-operatives.
Corporations lose their juristic personality when they are wound up either
through a prescribed court process or by special legislation as appropriate. This
might not be immediate. The corporate entity might subsist for a time while it
undergoes a statutory process of liquidation under the control of a liquidator
before termination.
There is no need to go into the theory of legal personality at greater length at this
point. Suffice it to say, in the context of the division between public and private
law, that both states and ordinary members of the legal system are treated as
capable of having distinct public and private personalities.

In respect of the state as a legal person, it may be charged in performance of

actions in a public or political capacity, but, at the same time it can also act as
how a private individual might act (for example, entering into private bargains).
Same applies to an ordinary member of the legal system who can have rights and
duties in a public or a private capacity. On one hand, the member might be a
citizen and therefore liable to pay taxes or claim to be entitled to vote as a citizen.
On the other hand, that individual will enter into legal relations with other
persons and will undertake duties and obligations and acquire rights and
interests by virtue of that private capacity.
Accordingly, it is appropriate to recognise that both states and ordinary legal

persons will be affected by both public and private law from time to time, and
that much will depend upon the particular 'mask' which is being worn at the time
of the relevant act.
Just as states can pursue remedies at private law, the ordinary citizen may pursue
remedies, which are provided distinctly by public law. The nature of the rights
and the remedies may differ substantially, of course, but they are potentially
available nonetheless.
ACTIVITY 2.2
Classical liberalism theory has stated that society should be left free in
their private sphere without any government intrusion. However, certain
theorists disagree since individuals now are separated from their
obligation as a citizen. As a citizen, do you agree with classical liberalism
theory? Explain why.

2.3 SUBSTANTIAL AND PROCEDURAL LAW
2.4 DIFFERENCES BETWEEN INTERNATIONAL

LAW AND NATIONAL LAW
SELF-CHECK 2.3
Have you ever come across as to the meaning of international law? Do you
think the legal system has any significant similarities to national law? If
your answer is no, then what are its roles towards member nations?
We should first distinguish between international law and national law. The
international legal system deals with relations between countries while the
national legal system of each country mainly governs relations between people in
that country.
It is easy to think of international law as relating to war and peace, control of

international aggression, and the peacekeeping efforts of the United Nations.
These are certainly matters, which may involve international law, and are
perhaps the most important areas of that law, but they are also areas where
international law has most difficulty being effective. For the international legal
system, dealing in general with legal relations between countries lacks some of
the important features of national legal systems.
International Law has no legislature which means there is no body which

possesses a recognised and effective authority to pass legislation, which binds
countries. The United Nations General Assembly has considerable influence and
does pass resolutions about the rights and duties of countries, but its powers in

relation to countries are very much weaker than the powers of a national
Parliament over its citizens.
Only the Security Council has power to pass binding resolutions in furtherance of
its powers to deal with threats to the peace, breaches of the peace and aggression.
Other countries incur obligations in international law only if they choose to,
usually by becoming party to a treaty with one or more other countries.
United Nation Logo

http://www.worldvolunteerweb.org/assets/graphics/logos/un_logos/un/UN_sm.gif
Again, there is nothing in the international legal system corresponding to a police

force or an army. It is true that the United Nations has some peace-keeping
forces, but these are very small and have to be contributed by member nations,
and can operate effectively only with the consent of the countries where there are
deployed.
In general, these forces cannot do very much beyond policing political or national
boundaries although this, of course can be a difficult and useful function. An
operation such as the 1991 deployment of armed forces against Iraq following its
invasion of Kuwait is quite exceptional.
Finally, there are no courts of the kind that exist in national legal systems. There
are only bodies something like ordinary courts, notably the International Court of
Justice (the World Court). However, this court, like other international courts and
tribunals, can in general, decide cases only with the consent of the countries
concerned; it is therefore, quite different from national courts, in which people
can be sued or prosecuted whether they like it or not.
The United Nations and the international legal system generally are sometimes
criticised as being ineffective, or not being "law" at all. It is pointed out, quite
rightly, that international law did not prevent the Vietnam War or the Iraq-
America War or Middle East conflicts.

These matters, and many others like them, may not make newspaper headlines as
often as threats to world security, but in these areas, international law is of
considerable significance.
There are, of course, rules about war and peace, and they cannot be ignored,
however, it is broadly true to say that since the international legal system lacks
the legislatures, courts and police of national systems, and depends largely on the
consent of countries, it is most workable in areas where countries see their own
interests as best served through orderly cooperation with others. It is, therefore,
in matters of everyday relations between countries, rather than in the anxious
decisions of power politics, that international law plays its most effective part.
The major modern source of international law is agreement - the growing

network of treaties between two or more countries on host of matters. Many
multilateral treaties resemble legislation. In Malaysia, such international
agreements do not automatically become part of the national law. But they can
influence the development on Malaysian Law. They are also important in a
different way.
Among the subjects on which the Parliament has power to make law are external
affairs, and laws that gives effect to international standards may fall within the
power of the Parliament, even though they deal with topics that would otherwise
come within the legislative power of the States.
Human rights treaties provide a good example. Two fundamental treaties in this
area are as shown in Figure 2.6.


Figure 2.6: Two fundamental treaties of human rights
Both were drafted by the UN's Commission on Human Rights in 1954 and were
ultimately approved by the General Assembly in 1966. But they did not begin to
operate until ratified by the governments of 35 countries, and this did not happen
until 1976.
International Court of Justice

http://www.unescap.org/unis/img/icj1.jpg
Some regional treaty arrangements (notably the European Community) come

close to establishing entities that look like federal governments, with their own
legislators, courts and bureaucracies. The process of "integrating" the nations of
the European Community continues to develop during 1992.
There is an ever-increasing body of international law as indicated in Figure 2.7.
Figure 2.7: International law bodies

These bodies set out standards relating to matters of international concern, for
example human rights and the protection of the environment.
ACTIVITY 2.3
The Iraq-America war has brought a big impact on the world peace and
economy. This is where the world has critised the United Nation and The
International legal system as being ineffective. Do you or do you not agree
with the criticism? Why? State your reasons.
Do you know what is written in Article 5 of the International Convention

for the Suppression of Terrorist Bombing? This can be found in Report of
The Six Committees of United Nation in
http://www.un.org/law/cod/terrorist.htm.
2.5 A BRIEF SUMMARY OF THE TYPES OF

LAW
2.5.1 Growth of Public Law
The areas of private law have long been intrinsic to the Malaysian and English
Legal System. We will examine the historical development of some of the most
important areas of private law.
One could say that, until the end of the nineteenth century, private law was the
dominant type of law. There was no elaborate system of public law; it is principally
because of the lack of a highly complicated state and bureaucratic apparatus.
No doubt there were areas of what we would now term as public law for example
areas such as criminal law but at the time, law itself would have been regarded as
primarily concerned with guaranteeing the rights and duties of individuals.
However, with the emergence of what we call the Welfare State, from the end of
the nineteenth century, there was a growth in the area of the activity of the state.
There was also evidence of a concomitant growth in the area of bureaucratic
activity in order to conduct the affairs of an interventionist state.

This increasingly interventionist state activity might be seen as contrary to the liberal
ideology that we have mentioned earlier; on the other hand, it might be rationalised
as necessary in order to generate conditions of relative equality of opportunity within
which individuals might be able to pursue their life projects. This trend continues
down to the present although, in times of privatisation and rational market theory,
we can see a reaction against the further growth of the public sector.
We have seen throughout the twentieth century a major growth in public law,
and particularly in the area of administrative law, which is concerned primarily
with the legal rights of citizens in the context of bureaucratic activity.
Similarly we have seen the development of a considerable body of constitutional

law in areas which were somewhat beyond the designs of those who drafted the
Malaysian Constitution.
In many instances, especially in administrative law, there have been put in place as
mechanisms for the legal review of the decisions of public servants and bureaucratic
agencies by courts and tribunals which function in a way that is somewhat removed
from the traditional modus operandi of the common law courts.
Even private law, has, to some extent, been affected by the growth in public law.
One sees, in areas such as contract law a traditional area of private law the
tendency to re-evaluate private law thinking on the nature of the contractual
bargain and the rights of the parties to a contract in concepts which may well
derive from public law.
Clearly this is no longer clearly the case in the sense that the courts themselves
have shown a willingness to intervene in private bargains in appropriate cases.

2.5.2 Types of Public Law

What we will now seek to do is to provide an outline of certain of the major areas
of public law. The main areas will be discussed are:
(a) constitutional law;
(b) administrative law;
(c) taxation law;
(d) criminal law;
(e) international law; and
(f) environmental law.
There are other possible categories, but these will provide a suitable cross-section
of the general public law area. All of them are independent subject areas of study
in their own right. However, their introduction will provide some flavour of the
general field of public law.
It is of some importance to note the basic sense in which we are dealing with law
as it operates in the public domain. In particular, you should be able to see how
these areas of public law all involve the participation of public institutions
including, at the most general level, the state as encapsulating all of the public
institutions of law and government. Unlike private law, we cannot say that these
areas involve merely the regulation of, or the interrelationship between, private
citizens in a way that is appropriate, for example, to contract law.
ACTIVITY 2.4
In 19th Century, Public Law such as criminal law was regarded as less
primarily concerned with guaranteeing the rights and duties of individual.
However, at the end of 19th Century due to the emergence of Welfare
State, Public Law has begun to develop. Using your understanding of
what you just learnt, explain in detail the growth of Public Law as to the
expansion of activities by the state.

Figure 2.8: Types of public law
(a) Constitutional Law
You have been provided a rather basic understanding of the nature of that
system as a federal system. The federal factor, which involves a division of
powers between spheres of government, national and regional, pervades
all aspects of organisation of the Malaysian legal system - not merely in
respect of the division of legislative powers between the various
governments, but also in respect of the practical arrangements of
governments as well as the structure of the court system and the
bureaucracy.
The pervasive influence of federalism is unsurprising and highly

appropriate. A constitution is to be understood as the basic structure of
operation of any political or legal system. In traditional legal theory, it is
sometimes conceived as the basic or fundamental law, which underlies the
operation of all other areas of law and legal institutions within that system.

To conceive constitutional principles as the fundamental law, might appear

to beg some questions about the nature of the constitution itself for the
reasons that we will be discussing. Indeed, this conception of the
constitution as essentially embodying a supreme law, rather than a set of
political propositions, both elevates the judiciary to a position of
constitutional prominence and has encouraged a certain degree of legalism
in the understanding of constitutional principles.
For one thing, it has always justified the role of the courts as the arbiter of
constitutional questions and issues. In truth, it would be more correct to say
that constitutional principles are reducible to a number of commonly
accepted political theories as to the appropriate role of the state or
government in particular societies. They are not principles which can or
should be interpreted legalistically, at least in the narrow, self-defining,
value-neutral sense in which legalism is conventionally understood.
Constitutional can be divided into two types as shown in Figure 2.9.
Figure 2.9: Two types of constitution

It is something of a misnomer to ascribe to Malaysia just one constitution

and this is, of course, the inevitable consequence of the manner in which the
federal structure came into being in Malaysia. We need to remember,
however, that the Malaysian federal system is made up of several partially
independent constitutional entities. The Federal constitution was formed
presupposing a unity of the peoples of various States. Each of those States
had its own history of constitutional development, which led to its
establishment as a more-or-less independent constitutional entity at the
time of federation. The States' existence as political and legal entities was
moderated but not obliterated by federation.
(b) Administrative Law

The growth of public law mentioned above is in large part attributable to
the growth of administrative law.
Administrative law is the term, which is applied to the areas of law, which
purport to regulate the relationships between the citizen and public
officials, and particularly the bureaucracy.
With the growth in the bureaucracy from late last century there has been a
consequent increase in the range of official activities and the degree of
intervention of the bureaucracy in the everyday affairs of society. The
German sociologist Max Weber indicated as much at the turn of the century
when he foreshadowed the growth of administrative structures and of the
bureaucrats who purport to regulate the lives of the citizens of modern
political societies.
The growth in administrative activity is directly related to the growth of the

so-called Welfare State from the end of the last century. This conception of
the state, the development of which is at least reflected in the attempted
merger of classical liberal ideology with strands of socialist thought at the
end of the last century, affected a challenge to the early liberal concept of
the minimal state as put forward by thinkers such as J.S. Mill. The
unregulated market with minimalist government functions, which held
pride of place throughout the nineteenth century, was to be replaced with
the concept of the state which was interventionist in the interests of the
achievement of social betterment, the allocation of welfare for the relief of
poverty, the provision of pensions for the aged and the disadvantaged, the
redistribution of resources on an equitable basis and the erosion of the
traditional power base of a conservative aristocracy. As was suggested
earlier, this move could be rationalised in liberal ideology as an extension of
the notion of the state creating optimum conditions under which
individuals might pursue their individual destinies.

Under the Welfare State there was a shift in political power away from the
traditional aristocratic and middle commercial classes in the direction the
bureaucracy. Unfortunately, the expansion of bureaucratic activity and the
extended complexity of regulation of the ordinary lives of citizens was not
accompanied by any elaborate mechanisms to cope with abuses of power or
failure in duty on the part of bureaucrats and others endowed with this new
political power. Until thirty or so years ago the predominant means of
regulation of the activities of administrators in Malaysia was by traditional
principles known as the principles of 'natural justice'. Of course it should be
said that administrators were subject to the ordinary laws just the same as
other citizens. But they were in an especially privileged position in that the
official positions, which they enjoyed often, meant they were not
responsible for actions officially undertaken. Often the issues, which needed
to be raised, were the basis upon which official and therefore legitimate
decisions were taken on behalf of the state.
(c) Taxation Law

The growth of public law mentioned above is in large part attributable to
the growth of administrative law.
Taxation is loosely described as the exactions by the state or public agencies

from its citizens for public purposes. The public purpose of taxation is

frequently an aspect, which is ignored, especially in an environment in

which any form of taxation is frequently seen as a penalty imposed on
individuals by an avaricious state apparatus. Taxation is nonetheless the
means whereby the state raises the expenditure necessary to maintain public
or communal goods and services such as roads, defence systems, public
service infrastructures, and so on.
Taxes may take many forms such as shown in Figure 2.10.
Figure 2.10: Form of taxes
They are frequently classified as direct or indirect taxes according to the

manner in which they are imposed. Direct taxes include the direct levies
against income and capital gains derived by citizens. Indirect taxes include
those such as payroll, certain goods and services or sales and consumption
taxes, as well as stamp duties imposed on various property transactions and
council rates.
Figure 2.11: Classification of taxes

(d) Criminal Law
In theory the state is a public agency which is the guardian of the political
and social system. Particular types of conduct or courses of action on the
part of its citizens may be regarded as sufficiently serious as to justify
prevention or discouragement. Types or courses of conduct so discouraged
will be termed crimes.
There may be a variety of rationales for seeking to prevent particular forms

of conduct. Much will depend upon the nature of the conduct involved.
There is perhaps no general rule forming the basis for the treatment of
particular conduct as crime. The conduct may tend to promote disorder or
civil disobedience. You will recall, from above, which many definitions of
law tend to promote connections between law and order.
There are no doubt other approaches, which might appeal - for example, to
morality, holding that certain conduct is criminal because it is contrary to
justifiable moral principles or that the criminal law exists primarily to
enforce moral standards. For example, it might be argued that there is a law
treating homicide as a crime because there is a general moral principle,
which forbids the taking of human life. Unfortunately, this is not always so
clear, and sometimes the law itself seems to offend this moral principle - for
example, by defining certain forms of homicide as justifiable homicide and
allowing them to take place without criminal sanction.
(e) International Law

Almost by definition international law is an area of public law because it
involves interaction between the principles of different legal systems or
between the citizens of different legal systems. These can only be mediated
at the public level of the legal system. There are, however, different forms of

international law as shown in Figure 2.12. These are understood most

basically as private international law and public international law. The
former is sometimes referred to as Conflict of Laws. It might be clearer if we
drew out the public nature of this particular area of law.
Figure 2.12: The two types of international law
Conflict of laws is concerned with the means by which the rules of different
legal systems are applied to transactions and dealings between legal
persons who are subject to different legal systems. Certainly what we are
confronted with most commonly in this area are commercial dealings
between the residents or citizens of different states or countries. However, it
can involve dealings or interactions in the widest sense as in areas of:
family law;
liability in tort; and
contract.
In one sense conflict of laws are concerned with the basis upon which
individuals subject themselves and their arrangements to a particular legal
system. To illustrate this issue, refer to the following example.
Suppose that a contract is entered into between a company registered in

Canada but carrying on business in New Zealand and an individual who
was born in Zaire, attended school in France and carries on businesses in
Australia, Germany and Russia. Suppose that the contract was entered
into in the United States of America but that it concerns the purchase of
property located for the time being in Malta. The individual repudiates
the contract by a letter posted from the Canary Islands. The company
takes action in a Canadian Court to enforce the contract. The issue will be
whether the court has determined the issue.

There are a number of legal systems to consider as being of potential application.

The principles relating to contracts, their making and enforcement will vary
considerably and may well are in conflict with one another.
(f) Environmental Law
It also includes an element of private law in that a number of common law

actions, such as Nuisance, may lend themselves to environmental concerns.
Environmental issues have come to the fore in Malaysian legal debate, as in
most other industralised countries, over the past twenty years and this has
generated concern on the adequacy of legal regulation as a response to the
claimed need for environmental protection and preservation. As
environmental problems take on an increasingly global perspective, there
are a growing number of international treaties to which Malaysia is a
signatory. Their impact is felt when they are enacted into domestic law.
Current legal regulation of the environment tends to be piecemeal. In the

past, it has been left to state governments and local regulatory agencies in
the States. Their nature and composition vary from State to State. The
Federal Constitution does not contain any explicit power for the federal
government to enact uniform legislation dealing with the protection of the
environment on a national basis. The tendency of the Court to read the
federal powers broadly has had the effect of placing potentially very wide
environmental powers in the hands of the federal government, although
they have not been fully exploited. At the other end of the political
spectrum, an increasing reliance is placed on local governments to regulate
the environment in conjunction with their planning role.
The pressure of public concern with environment matters on political

institutions has resulted in the creation of a number of specialised
institutions with specific statutory powers relating to the regulation of the
environment for example, the federal and state Environmental Protection
Agencies.

2.5.3 Types of Private Law
Figure 2.13: Types of private law
(a) Contract Law

Contract law is concerned with all aspects of the special form of agreement
known as a contract. This includes not only the principles by which one
determines whether or not a contract has been brought into existence, but
also matters such as:
the interpretation of the contract;
examining particular statements from part of the contractual bargain;
whether the contract has been breached by one or more parties;
questions of enforcement of the contract; and
enforceability and discharge of the parties from the contract.
Rather than engaging in discussion regarding ancillary questions, we will be

explaining some of the elements in regards to contract formation, as one goes on.
A contract is a type of legally enforceable agreement. Contract law is an area

of common law, although many features of contracts and their enforcement
are now also regulated by the doctrines of equity. One of the simplest
definitions formulated in respect of a contract is in Todd v Nicol, where it
was said that a contract is:

You should note the key elements in this definition. It is the idea that the contract
is an agreement. Sometimes this is expressed by saying that the parties to a
contract are consensus ad idem (of the same mind).
However, it will be noted that not all agreements made between parties are to be
regarded as contracts. The definition refers to those agreements, which are
intended to be enforceable at law. In other respects, there are certain formalities,
which must be complied with before an agreement can be regarded as a contract.
(b) Law of Torts

The law of torts is another basic category of the common law. The most
conventional classification of tortious liability is that which distinguishes
wrongs, which are intentional from those which are not. The oldest torts
involve direct wrong-doing such as trespass to the person or trespass to
property, along with other actions such as detinue and conversion, which
are concerned with the rights to recover property. The non-intentional
varieties of torts include, for example, negligence and nuisance.
There has often been some conjecture about the jurisprudential basis for the
miscellaneous torts which are or have been recognised; that is to say,
whether all of the wrongs which we regard as providing some remedy in
tort are to be regarded as stemming from some common group of
principles.
For example, it could be argued that all categories of tortious wrongdoing

are reducible to economic rationales, which are concerned with the
allocation of the risks within society. Others might argue that all torts are
species of wrongdoing, which are based on fundamental moral principles.
One can, for example, read into certain of the judgments of the Malaysian
Courts in recent times an attempt to rationalise certain of the traditional
torts within the guiding principles of negligence; that is to say, to suggest
that all torts are resolvable into questions about the existence and scope of a
duty of care.

Figure 2.14: The two main variety of tort
(c) Property Law

Property law is concerned with issues such as:
the types of property which the legal system recognises;
the particular interests which can be created in relation to property; and
the manner in which property interests might be dealt with by those
who lay claim to them.
What the law regards as property is an intriguing question, especially in
that it traditionally has regarded certain types of interests as property and
others as personal rights only. For example, certain types of creative activity
will fall within the law of copyright and therefore be recognised as a form of
intellectual property while other things, which are the subject of creative
activity, will not be so recognised.
In all property systems, there is not only diversity as to types of property

but there is also a great diversity as to the types of interest in property,
which can be created.
Thus a person might have a right to use land only for the period of his or her
life (a life interest) or for the life of some other person (an estate pur autre vie).
Alternatively, an individual might have a lease or tenancy interest with respect
to a property, which provides them with an exclusive right to the use and
possession of it for a defined or a recurrent period. If that right were non-
exclusive, in the sense that it did not preclude the true owner from having
possession of it as well, then the law would generally regard this as a license,
which is essentially merely a permission to use property. Similarly, there are
mortgage interests and interests by way of lien or charge which is essentially
security interests provided by the owner of property in order to secure a loan.

To add to this complexity, there are also a number of interests which will be
recognised as equitable only in nature. It also recognises some types of
interest as proprietary in nature even where those interests are not regarded
as property at common law.
Hence, in property law, there are legal interests and equitable interests, and
in some respects there are different criteria expounded in each as to the
manner in which these interests might be created. The common law
imposes fairly strict formal requirements for the creation and recognition of
property dealings; for example, certain interests such as interests in land
must be created in writing, while only the completion and registration of
prescribed forms or some other formality can transfer others.
For example, a statute might require that the parties executing a prescribed
form of lease must create leasehold interests in land and have it registered.
In certain circumstances, equity, however, will disregard the parties' failure
to execute the prescribed form of lease and will give effect to the parties'
agreement to create the lease, enforcing it as if the proper legal form had in
fact been followed. The common law generally required strict compliance
with particular obligations arising, for example, under a lease or a contract;
equity would regard substantial performance or compliance as sufficient.
Figure 2.15: Two types of interest in property law

(d) Succession Law

In Malaysia the law of succession is not part of any law. This area of law is
found in the English law of succession. To some extent it is based on
common law, but in many vital respects it is a creature of statute law as
well. Historically, the English law of succession was influenced by the
feudal system. There was some influence in terms of the jurisdiction of the
courts of ecclesiastical law and through civil law, but now there are more
significant similarities with the jurisdiction of equity.
There were some very significant early differences between the way in which the
principles of succession applied to real estate on the one hand, and to personal
estate on the other. This reflected the importance attached to real estate and the
importance of securing control over land estates as against the free disposal or
exchange of commercial or personal property. The right of a particular group of
control the inheritance to real estate is a significant factor in certain societies or
societies at a particular stage of historical development. It is attributable to
something more than mere territorialism on the part of individuals. It reflects
both the importance of attachment to land as well as the importance of land in an
economic sense within a particular society. We could say that now the central
importance of real estate has diminished somewhat in economic terms without
devaluing the attachment, which is placed on it. But more ability of all forms of
property tends to be of greater significance economically than was once the case.
Historically, the right to dispose of real property by will was not available
to a person until the mid-sixteenth century. There were exceptions where
particular customs permitted the disposal of land by will. Land passed by
primogeniture (that is to the eldest son) and continued to do so after the
collapse of the feudal system. The equitable use, a precursor of the modern
trust, was employed, from the fifteenth century, as an attempt to avoid the
consequences of this system with varying degrees of success.

ACTIVITY 2.5
Evaluate your understanding by answering the following questions:
1. What is the type of constitution that we have in our Malaysian
Federal Constitution?
2. Administrative Law is one of the areas of Public Law. True or
False?
3. Taxes can be classified into two. What are they?
4. Conflict of Laws also sometimes referred as what?
5. What is the institution which has the specific statutory power
relating to the regulation of the environment?
6. Define what is Law of Contract.
7. What are the examples of the non-intentional varieties of tort?
8. In property Law there are legal interest and common law interest.
True or False?
9. Law of Succession can only be found in English law. True or False?
EXERCISE 2.1
State the requirements needed in order for local custom to be recognised as a
source of law.
This topic has discussed the major type of legal systems in the world.
Malaysia being an Islamic state not only adopts the common law system but also
some influences of the Islamic law can be seen here.
The other type of legal system will be the Civil System which is practiced in
European countries and its current and former colonies.

Topic X Evaluation of
Sources of
3 Malaysian Law
LEARNING OUTCOMES
1. Provide the three major sources of Malaysian Law;
2. Discuss the evolution of the sources of Malaysian Law;
3. Analyse the legislation and the subsidiary of legislation;
4. Assess the importance of statutory interpretation; and
5. Summarise the impact of Islamic Law in Malaysia.
X INTRODUCTION
This unit introduces the sources of law in Malaysia. Sources of law have different
meanings. For the purpose of this study, the sources of law mean legal sources that
make up the law in Malaysia. There are three major sources of law in Malaysia, which
will be discussed in this topic. It is also important to understand the evolution and
historical aspect of these sources. This will encompass a discussion on the reception of
English Law in Malaysia and Common Law and Equity.
To enable you to have a clearer understanding of some legal concepts, Australian

and English cases have been cited as examples. It should also be noted that the
cases from these jurisdiction holds persuasive authority.
3.1 RECEPTION OF ENGLISH LAW IN

MALAYSIA
The British Colony was establish in 1786 in Penang, the spread to Singapore and
Melaka. This was known as the Straits Settlement.
Foreign influence in Malaysia can be seen way as far back as 1511. Portuguese
occupied Malacca from 1511-1641. The Sultan of Malacca fled first to Pahang and

TOPIC 3 EVALUATION OF SOURCES OF MALAYSIAN LAW W 51
then to Johor and the Riau Archipelago. One of his sons became the first sultan of
Perak. The attack on both Johor and Aceh in Sumatra was unsuccessful therefore,
attacks were made on Malacca. Aceh and Johor also fought each other. The main
issue in these struggles was control of trade through the Strait of Malacca. Kedah,
Kelantan, Terengganu and north of Malacca, became nominal subjects of Siam.
Dutch Occupation in Southeast Asia
Figure 3.1: The chronology events of Dutch

52 X TOPIC 3 EVALUATION OF SOURCES OF MALAYSIAN LAW
3.1.1 Strait Settlements Acts

The first territory to be acquired by the British was Penang. This was in 1786. It
is however, unclear how the British acquired Penang. There are various theories
on this matter. Therefore, it is important to determine the law of the territory.
The origins of the Malaysian Legal System can be traced back to England. As
early as 1608, the principle was established that English settlers took English law
with them when they entered a new territory. This was known as the Doctrine
of Reception (or the doctrine of terra nullius) and it has a history that can be
traced back to the time of the Roman Empire for it was the Romans they who
with them the law they knew and understood, rather than using the laws of the
countries they conquered.
It is worth looking at the explanation of the late Sir John Latham (formerly Chief
Justice of Australia). He explained the operation of the Doctrine of Reception in
the following words, and at the same time provided an insight into an eminent
jurists perception of current thinking of Aboriginal society at the time:
In other words, if Malaysia had been gained by conquest or ceded by treaty, the
existing laws in force in Malaysia at that time would have applied until
superseded by the laws of England.
However, as Malaysia was not considered by constitutional theory at the time to

be owned by any group or state and no recognised legal system was seen to exist,
the common law of England that was applicable to the conditions of colonisation
applied from the moment of colonisation. Francis Light reported that Penang was
uninhabited when he landed. This was further re-inforced in the cases like (R v
Williams) and (Fatimah v Logan).

The Privy Council in the case of (Ong Cheng Neo v Yeap Cheah Neo) stated:
It is really immaterial to consider whether Prince of Wales Island, or as it is

called Penang, should be regarded as ceded or newly settled territory, for there is
no trace of any laws having been established there before it was acquired by the
East Indian company. In either view the Law of England must be taken to be the
governing law so far as it is applicable to the circumstances of the place, and
modified in its application by these circumstances.
J.W. N. Kyshe in his article A Judicial History of the Straits Settlements, 1786
1890, Mal LR, 11 (1969) said that the early records of Penang showed no official
body of law existed for the first twenty odd years of British occupation. Sir
Francis Light was given the task of maintaining order. He was the
Superintendent, whereby the magistrate and second assistant assisted him on this
matter. This clearly implies that there was no separation of powers between the
judiciary and the executive. Since the British subjects were not under the
jurisdiction of the Superintendent, those arrested were sent to Bengal for trial.
This proved to be unfeasible as the evidence and the witnesses were located in
Penang. It was not until before his death in 1794, Francis Light received some
written regulations from Governor General, Lord Teighmouth.
As explained above, the Straits Settlements was the unification of a joint

administration for certain former British colonies in Southeast Asia. In 1826, the
three British East India Company territories (Singapore, Penang and Malacca)
were given a unified administration. This was known as the Straits Settlements.
In 1826, a new charter was introduced called the Second Charter of Justice. This
charter generally introduced English Law into the Strait settlements. However,
there are controversies as to the extent of English Law received. Sir Edward Rice,
the first recorder of Penang was of the view that the Charter of Justice still
allowed the locals to freely exercise their:
religions;
customs;
usages; and
habits.
Sir Ralph Rice the then third recorder of Penang was also of the view that English
law was only applicable in criminal matters. In civil matters however, they were
governed by their own laws and customs. In the case of Choa Choon Neoh v
Spottiswoode, however, Maxwell CJ expressed a contrary view:

A Third Charter of Justice was introduced in to the Straits Settlements in 1855;

this was to remedy the deficiencies in the system. This charter repealed the
former charter in order to reorganise the Court of Judicature (explained below).
There were two divisions, one for Penang and the other for Melaka and
Singapore.
However, in 1858, the company was dissolved. Thus, the Indian Office had
jurisdiction over the territories. The Straits Settlements administered by the
Colonial Office in England became a crown colony in 1867. Ordinance V that was
passed in 1868 by the Legislative council abolished the court and replaced it with
the Supreme Court of the Straits Settlements. The new court had three
jurisdictions which were later reduced to two in 1873. In the same year the
Supreme Court was accorded an appellate jurisdiction. The Court of Appeal had
a composition of not less than three judges when it sat as a Full Court. The
divisional court had two judges in a sitting. After the reconstitution of the
Supreme Court, the divisions of the court were impliedly abolished by reducing
the number of judges to three. It was not only through the Charter that English
Law was introduced but also through legislation. They were as shown in Figure
3.2.
Figure 3.2: English law that were introduced through legislation
As mentioned above in 1867, after the transfer of settlement to the Colonial office,
the legislative council of the straits settlement was formed. This council was
given the authority to enact legislations for the settlements with effect from 4th
February 1867.

Labuan
In 1912 Labuan was made a dependency of Singapore and was constituted a

fourth Settlement. In 1930, the Strait Settlements administration as a Presidency
was found to be far more expensive to have a separate administration and was
downgraded to a status of a Residency. This meant it was under the control of the
Governor of Bengal. In 1946 The Straits Settlement crown colony was dissolved.
In the same year Singapore with its dependencies became a separate crown
colony. Penang and Malacca were included in the Malayan Union. In 1948 the
Federation of Malaya was formed.
ACTIVITY 3.1
Based on your basic understanding of what you have learnt earlier,
describe what is Strait Settlement. Explain how was it established.
3.1.2 The Malay States
SELF-CHECK 3.1
In 1985 the Malay states were divided into two forms. What the two forms
are?

During nineteenth century, the Malay states consisted of Perak, Selangor, Pahang
and Negeri Sembilan. Before the intervention of British, the Malay states had its
own law. This was called the Malay Customary (adat) law which was modified
by the principles of Syariah law. The villages applied Islamic law and customary
law.

The process of an Islamised Malay Adat law was arrested when British came. In
1895 the four Malay states was formed as the Federated Malay States. The other
five states which were made up of Johor, Kelantan, Terengganu, Kedah and Perlis
did not join the federation and was called the Unfederated Malay States.
The Malay states were not a colony like the Straits Settlements. These states were
in many ways independent and ruled by their sovereigns. The acceptance of this
can be seen in cases such as (Mighell v Sultan of Johor) and (Duff Development
Co v Government of Kelantan).
The reason for the above was because these states were not British territories;
therefore English law could not be imposed through the doctrine of reception, but
through voluntary treaties.
The Statutory introduction of English law to the Federated Malay States was in
1937 and the Unfederated Malay states in 1951.
In the case of (Ong Cheng Neo v Yap Kwan Seng), the judicial commissioner
stated his opinion on the reception of English law.

It cannot be denied however, that English law had a profound impact. The Civil
Law Enactment 1937 gave statutory authority for the introduction of English
common law and equity to the Federated Malay States. The state of the law before
the civil law enactments can be seen in the case of (Re the Will of Yap Kim Seng).
In 1948, the Unfederated Malay states became part of the Federation of Malaya in
1948 and the Civil law (Extension) Ordinance 1951 extended the application of
the Enhancement to these states. In 1956, these ordinances were repealed by the
Civil Law Ordinance 1956 which applied to all eleven states of the Federation.
The sections in the Civil Law Ordinance (CLO) 1956 which were relevant to the
application of English law are as exhibited in Figure 3.3.

Figure 3.3: The sections in the CLO 1956 which were relevant to the application of English Law
3.1.3 Sabah and Sarawak (Borneo States)

There are two significant differences in the modern history of the Borneo states as
compared to peninsular Malaysia. They are shown in Figure 3.4.
Figure 3.4: Two significant differences in the modern history of the Borneo states
Although the Borneo states were British protectorates in 1888 (North Borneo as
Sabah was then known under the British north Borneo company and Sarawak
under the Brookes) the formal reception English law in Sarawak only took place
in 1928. This took place with Law of Sarawak Ordinance 1928. The ordinance
stated that the law of England subject to modifications by Orders of Rajah and so
far was applicable, having regards to native customs and local conditions.

These provisions have been reproduced in the Civil Law Act 1956. (Revised
1972). Chinese customary laws were never administered as part of native custom.
However, Islamic law and Malay customary law were considered as native
custom and there were separate system of natives courts with limited
jurisdiction over civil and criminal matters. In 1978, Islamic law and Malay
customary law were administered by the Islamic council and Syariah court.
ACTIVITY 3.2
Do you believe that Malaysia should have been described as uninhabited
when the British colonised here? Explain your point of view from a legal
(rather than an emotional) perspective.
3.2 COMMON LAW AND EQUITY
SELF-CHECK 3.2
Based on your understanding in Topic 2, recall your understanding on
what is meant by common law.

The Malaysian System traces some of its origins from England. The Malaysian
legal system is based on the common law and equity, Syariah law and customary
law traditions. However, the common law forms the basis of the national legal
system. This was received in Malay Peninsula (as Malaysia was then known)
when the British came to Penang in 1786. In order to appreciate the common law
system in Malaysia today, it is important to understand the historical origins of
English Law and the development of common law and equity.
3.2.1 Origins of English Law

The English Legal System had a diversity of sources these are included in Figure 3.5.
Figure 3.5: Sources of English Law
3.2.2 The Development of Common Law

The historical development of Common Law is divided into 3 stages these are
shown in Figure 3.6.
Figure 3.6: The tree stage of historical

development of common law

(a) Pre 1066: Anglo-Saxon Period

Prior to the Norman Conquest the legal system of England was not
unified. It was fragmented i.e. there were different systems of law applying
to different parts of England.
For example, the Northern and North-Eastern part of England applied
Dane Law due to the invasion and settlement of the Vikings in those
parts. The Midlands applied Mercian Law which was born out of the Saxon
invasion from Germany. South and West of England adopted Wessex Law.
An example of the diversity can be seen with regards to inheritance law can
be seen in Table 3.1.
Table 3.1: An Example Diversity with Regards to Inheritance Law
SYSTEM FACT
The eldest son inherits his father's land. This law was applied in
Primogeniture
most part of England.
Gravelkind All sons inherit equally. This was applied for example in Kent.
The youngest son inherits the land. This system was followed in
Borough-English
Bristol and Nottingham.
Since there was a diverse system of laws in England, how were these laws
enforced? There were several means of enforcement practiced, some of which
were set out as in Table 3.2.
ENFORCEMENT FACT
This is also known as frankpledge. Here, all males over 12 years of
age belong to a 'tithing', which is group of 10 members. This
Anglo-Saxon
group is equally responsible for the actions of each member
System
therefore; if an individual member commits a wrong, the other
members must submit him to justice or themselves be killed as
outlaws.
An example of this system of enforcement is 'ducking' a person in
Trial by Ordeal the river to see whether he floats or sinks. If he sinks, he is
innocent and if he floats he is guilty. This was an appeal to God or
the 'supernatural'.
This is a means of enforcement whereby a person is asked to
Compurgation
repeat an oath over and over again until he is able to say it
perfectly.
There was two separate levels of courts:
1. Central government (King's courts), also known as the
Court System Witan.
2. Courts run by local authorities for example, the sheriff
system. Local courts can further be divided into 3 types.

The three types of local courts areas shown in Figure 3.7.
Figure 3.7: The tree types of local courts
The local courts played a more important role than the Witan since the King was
not powerful and therefore his courts were likewise not great.
(b) Post 1066: 'After the Norman Conquest'

In 1066, William of Normandy (William the Conqueror) defeated the
Anglo-Saxon King at the Battle of Hastings, and became King of England.
He was a powerful King and could therefore easily transfer most of his
power to the Central government.
(c) Henry II Onwards

Due to the hardship of going to Westminster for court cases, Henry II
developed the system known as 'Itinerant justices'.
The hardships faced in going to Westminster were:
(i) the journey was long; and
(ii) delay in hearing cases as local witnesses could not be found.
Due to the above hardships, people did not go to the royal courts. However the
local courts were also not popular because they were frequently corrupt, biased

and unfair. To solve their problem, King Henry II introduced the system of
'itinerant justices'.
The system of 'itinerant justices' meant a system whereby the country was
divided into circuits and the itinerant (Royal) justices would go on their rounds to
decide cases.
The original justices who sat in these courts were untrained and therefore relied
on the information of locals to find out the facts and the particular local law. This
brought about the introduction of the Jury System.
Upon completing their circuits, the justices would return to Westminster. There
they would discuss all the different laws and customs of the people. They would
accept the good points and rejected the bad ones.
Later these justices went out again on their rounds, but later as time went by,
they applied the law they had decided at Westminster. This law later came to be
known as Common Law.
In order to be more uniform and certain, the judges developed the Doctrine of
Stare Decisis (stand by the decision). This doctrine states that judges are bound
by decisions of earlier judges.
ACTIVITY 3.3
Evaluate your understanding by answering the following simple

questions:
1. Prior to Norman Conquest each part of England applied different

law. Name these parts and the laws applied.
2. In inheritance law, there are Primogeniture, Gravelkind and Borough

English. Explain how these systems work.
3. Give an example on how trial by order was practiced in England?
4. Who had defeated the Anglo-Saxon king and became king of

England?
5. What are changes made by William?
6. What was the system developed by Henry II?

3.3 THE DEVELOPMENT OF EQUITY
SELF-CHECK 3.3
Based on your reading, what do you understand by equity, is it similar to

other laws?
Equity as a source of law can be defined as follows:
Figure 3.8: Equity and common law as separate system

Basically the defects of the Common Law system were as follows:
(a) Inflexibility of the Writ System
For every civil wrong, there is a specific writ where, the injured party
would then apply for a writ, which was most suited to his claim. If the
wrong writ was obtained the injured party cannot get his case heard.
Furthermore where there is no writ, the court would not create one. Hence
the equitable maxim "Where there is a remedy there is a right".
(b) There was Much Bribery and Corruption at Common Law

It was difficult for a person with low social standing to succeed. This was
because persons of wealth and power could put pressure on the courts to
decide for their favour.
(c) The Common Law Courts Lacked Jurisdiction to Hear Certain Cases
This includes a situation where foreign merchants were parties to a case
and the Common Law Courts lacked jurisdiction to hear disputes involving
foreigners. This further enhanced the disadvantages of the common law
system.
(d) Inadequacy of the Common Law Remedies

The Common Law remedy for breach of contract is damages which is

compensation in a monetary form. However there maybe situations where
this is not a sufficient remedy, for example, where the claimant is seeking
for a specific performance order compelling the guilty party to perform
his part of the contract.
(e) The Failure of the Common Law to Recognise the Use (Trust)
An example of use is where a landowner conveys land to another person
(trustee) directing him to hold the land on a short term basis for the benefit
of other persons (landowners beneficiaries). The common law refused to
recognised the rights of the beneficiaries. Therefore equity came in to offer
these people a protection, as the common law failed to fulfill its function.
Any effective system must have:
Certainty : This the common law had due to the doctrine of stare
decisis (precedent).
Flexibility : This the common law lacked since it failed to take into
account the needs of changing society.
To fill in this lacuna (gap), equity evolved. There are various states in the
development of equity:
(i) The aggrieved party petitioned to the King to receive relief. This was
done as the King was the fountain of justice.
(ii) By the time of Edward Is reign, there were many petitions.

Therefore the Lord Chancellor took on this responsibility as "keeper of
the King's conscience". The Lord Chancellor gave remedies based on
his discretion. This was influenced by Cannon Law principles as most
of the Lord Chancellors were Bishops.
However each Lord Chancellor would decide in a different way; and
therefore the remedies given also varied. Seldon therefore commented as
follows: "Equity varies with the length of the Lord Chancellor's foot".
(iii) In the 16th and 17th Century the Lord Chancellors were no longer
clerics (Church office holders). Their position was taken by trained
judges. This showed an attempt to introduce some certainty in this area.
(iv) When two separate systems run side by side as common law and
equity did, conflict is inevitable and this was exactly what happened.

The issue of which should prevail in the event of conflict arose. The
following case determined this issue.
(v) C: Earl of Oxfords Case (1616) 1 rep. Ch.1 & App.

F: Equity had provided for an equitable common injunction'. However
the common law courts refused to recognise its jurisdiction.
H: Where equity and common law conflict, equity shall prevail. The
King was advised by the Attorney General, Sir Francis Bacon to decide
on the above point.
(vi) The Judicature Act 1873 1875 : S.25(2) of the Judicature Act 1873
states as follows: "Where there is any conflict between common law
and equity; equity will prevail".
This legislation therefore reinforced the Earl of Oxfords Case (1616). Further,
the Acts provided that both common law and equitable remedies can be
obtained in all courts. For the effect of the Acts see:

The final issue to be considered is whether the two systems have been fused or
whether it is only their administration which has been fused.
There are 2 views on this issue and these are shown in Figure 3.9.
Figure 3.9: The two views on the issue of equity and common law
The majority of the writers prefer the second view by Sir George Jessel in Walsh
v. Lonsdale (1882) 21 Ch. Div. 9
Pursuant to the English Supreme Court of Judicature Acts 1873-1875, the Civil
Law Ordinance 1878 was passed. This empowered the Supreme court of Straits
Settlements to administer common law and equity concurrently, and in event of
conflict the latter will prevail. It also provided that considerable body of English
legislation to operate on a continuing basis in commercial matters.

ACTIVITY 3.4
List down the defects of common law and what are the lacunas evolved by
the equity?
3.3.1 The Reception of Common Law in Malaysia

It was through The Royal Charters of Justice, common law was introduced to the
Straits Settlements. Through Administrative Arrangements, the application of the
common law was extended to the Malay States. It was initially introduced indirectly
by legislation. On specific matters, it was based on British Indian models. In 1937, the
formalisation of the common law was done by a series of enabling legislation. In the
Borneo States, the common law was received in the same manner.
Unfortunately, The Malay Adat was replaced by the Common Law as the basic
law of the land. The customary traditions of Malaysia were accommodated by
the British as it was British policy to apply the common law in situations where
the religions, manners and customs of the local people allowed. This was to
prevent common law to operate in an unfair and oppressive manner.
In 1963 Malaysia was formed and the application of English law was authorised
by three separate statutes:
Figure 3.10: The three separate statutes
After Malaysia was formed the CLO 1956 was extended to East Malaysia by the
Civil Law Ordinance (Extension) Order 1971. This was with effect from 1 April
1972. The Civil Law Act 1956 (Act 67) (Revised 1972) (CLA 1956) incorporates all
the three earlier statutes and is the statutory authority application of English Law
in Malaysia. The application of English law can be seen in three sections:
Section 3;
Section 5; and
Section 6.

3.3.1 The Call for a Malaysian Common Law

The call for a Malaysian Common Law is not something new. The repeal of S3
has been advocated by numerous academicians and judges. S3(1) states that:
Save so far as other provision has been made or may hereafter be made by any
written law in force in Malaysia, the Court shall:
(a) in West Malaysia or any part thereof, apply the common law of England
and the Rules of Equity as administered in England on the 7th day of April,
1956;
(b) in Sabah, apply the common law of England and the rules of equity,
together with statutes of general application, as administered or in force in
England on the 1st day of December, 1951; and
(c) in Sarawak, apply the common law of England and the rules of equity,
together with statutes of general application, as administered or in force in
England on the 12th day of December, 1949, subject however to sub-section
3(ii).
Provided always that the said common law, rules of equity and statutes of
general application shall be applied so far only as the circumstances of the States
of Malaysia and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary.
The interpretation of this section means that the courts in Malaysia shall apply
the common law rules and rules of equity existing in England on the above dates,
in absence of written law.
Malaysian cases seem to suggests that English statutes do not apply to West
Malaysia but it applicable in Sabah and Sarawak due to the wording in the above
section (b) and (c).
K.C. Vohrah J in the case of Pushpah v Malaysian Co-operative Insurance Society

was more categorical.
Case: Pushpah v Malaysian Co-operative Insurance Society [1995] 2 MLJ 667

Facts: The Plaintiff sought to invoke an English statutory provision to revoke a
nomination by her deceased husband in his life insurance policy made before
their marriage.
Held: The learned judge dismissed the application on the primary ground that
the S3(a) Civil Law Act 1956 allow in West Malaysia the application of 'the

common law of England and the rules of equity and not the additional item,
"statutes of general application", (which is included for Sabah and Sarawak)'.
When does common law and rules of equity (in Sabah and Sarawak) and English
Statutes apply under S3(1) CLA 1956?
It will apply subject to the following qualifications:

(a) Absence of local legislation;
(b) Cut-off dates; and
(c) Local circumstances.
ACTIVITY 3.5
Using your understanding of what you learnt, explain the historical

development of Common law.
EXERCISE 3.1
What are the major sources of Malaysian Law?
We have examined the reception of English Law in Malaysia.

The discussion was focused on the Straits Settlement, the Malay states and
Sabah and Sarawak.
In addition to that, we have also discussed the development of common law
and equity from England.
The common law and equity are both laws made by the courts. There was,
however, a vast difference between them in the past.
As well as discussion on the development of common law and equity from
England as mentioned, we have also analyse the reception of common law
and equity in Malaysia.

Topic X Legislation
4
LEARNING OUTCOMES
1. Explain the differences between written and unwritten law;
2. Discuss the three sectors of constitutional power;
3. Assess the impact of Islamic Law in Malaysia;
4. Interprets the powers of the Federal and State Constitutions; and
5. Evaluate and apply the Islamic law.
X INTRODUCTION
This topic will be discussing on the other sources of law, namely, the written law.
The first part of written law which is the constitution will be discussed. There are
two forms of legislation: Statute or Acts (enacted by Parliament) and delegated
legislation or subordinate legislation (law making power delegated by parliament
to persons or bodies). Unwritten law is also another source of law which will be
discussed. Finally, the last source of law will be the Islamic law which lends an
important role to personal matters.
4.1 WRITTEN LAW
SELF-CHECK 4.1
Do you know the difference between written law and unwritten law?
A legal system may be seen as systematic collection of principles and rules of law,
which is distinguished from principles and rules of morality, or of physics,

TOPIC 4 LEGISLATION W 73
assumed that the legal system as a whole has the primary function of establishing
and enforcing legal rules.
From another point of view, a legal system can be seen as independent system of
government. This means that other systems in the world recognise it as having
separate existences, with a government claiming ultimate law-making and
governmental authority for a defined geographical area. Such a legal system may
exist via:
(i) a democracy;
(ii) a dictatorship;
(iii) an absolute monarchy;
(iv) by a confederation of tribes; or
(v) by other means.
From yet another point of view, legal systems can be seen as collections of
institutions functioning within defined geographical areas. Modern European or
American legal systems may be expected to have a variety of distinct legal
institutions:
legislatures to make laws;
courts to resolve disputes between persons subject to the laws;
executive departments of government to carry into effect authoritative
decisions made in accordance with law; and
police forces to enforce laws generally and to prevent breaches of law.
The legal institutions in a legal system exercise or transmit or interpret authority

and are bound together into one system by their common recognition of an
ultimate source(s) of authority. That common recognition of authority is made by
reference to rules of law which are accepted as binding by all of them and which
are usually described collectively as the "Constitution" of that system and that
country.

74 X TOPIC 4 LEGISLATION
Most constitutions, including Malaysia's, recognise three sectors of constitutional

power:
Figure 4.1: Constitutional power
(a) The Legislative
Figure 4.2: A federal parliament
The core of government is called parliament: "a Federal Parliament, which shall
consist of the King, Dewan Negara, and Dewan Rakyat", says Article 44 of the
Constitution.
The Malaysian Dewan Negara is the upper chamber. The Dewan Negara unlike its
Australian counterpart the senate is not represented by elected senators. The Dewan
Negara consists of 70 members (may change from time to time) as been provided for
by Article 45(1). The members are made up of the elected members of the State
Legislative Assemblies and Senators who are appointed by the Yang Di-Pertuan
Agong on the advice of the Government and must be the persons who have:
(i) rendered distinguished public service;
(ii) have achieved distinction in the:

professions,
commerce,
industry,
agriculture,
cultural activities, or
social service.
(iii) representatives of racial minorities; or

(iv) are capable of representing the interests of aborigines.
A senator's term of office is only for three years and is not affected by the
dissolution of the Parliament.
Dewan Negara
Source: http://www.ktkm.gov.my/images/parlimen.jpg
Creating a federal system of government, involves dividing powers and functions

between the central and the state governments. Some matters are of collective
interest, that transcend state boundaries and which are run by the central (or
federal) government. The Federal Constitution "enumerates" certain powers for
the federal or central parliament. This is provided for by Part VI of the
Constitution. The extent of the legislative powers of the federal and state
legislation is provided under Article 74. It does so by referring to three lists,
which are the Federal lists, the State lists and the Concurrent Lists.
These matters of common interest are in the central or federal parliaments hands.

The state powers would include among others are:

Islamic law,
local government,
land,
riverine fisheries,
agriculture; and
forestry.
The concurrent powers among others would be:

planning,
soil erosion,
scholarships,
public health; and
social welfare.
Figure 4.2: A federal parliament
(b) The Executive

Technically, executive power vests in the Yang Di-Pertuan Agong(King).
Article 39 of the Constitution gives the executive power to the Yang Di-Pertuan
Agong, to be exercised by the Prime Minister as the representative of the Yang
Di-Pertuan Agong. The Yang Di-Pertuan Agong retains the power to appoint
the Prime Minister, but by convention acts on the advice of the government of
the day.

Figure 4.3: The executive
We refer to the executive as "the government". The government is formed

by the party (or coalition of parties) with a majority in the lower house. In
Malaysia, throughout history one coaIition party Barisan Nasional has held
power in both of the houses. The consequence of this is that, the executive
has been able to secure easy passage of this legislative programme,
including constitutional amendments.
In Australia however, government works through the Federal Executive

Council, established under sections 61 and 62 of the Constitution. In the
Federal Executive, the Governor-General is "advised" of Cabinet's decisions.
Although Cabinet has no formal constitutional status, the Ministers of the
Crown meet there to make political decisions for the country.
In conformity to the Westminster model, in Malaysia, a Minister for

example, the Minister of Education, must be members of the Dewan Rakyat
(the lower house).
This differs from the United States where the American president can
appoint talented but unelected individuals to his cabinet, so that the
country can avail itself of superior skills available externally. The Malaysian
and Australian and their state cabinets sometimes could well benefit from
such a policy.
Such statutes give power to the King, Ministers, statutory bodies, or officials.
A minister typically has widely-drafted discretionary powers, for example to
set-up and run a "proper system of public education". To regulate use of such
wide powers, in recent decades, a branch of law had developed, called the
administrative law. It concerns with executive power and its misuse. From

these administrative courts and tribunals we hear of ultra vires (acting

beyond power) and natural justice (fair hearing with no bias).
Parliament often in its legislation, delegates the power to make laws (called
by-laws), usually to Ministers in charge of government departments and to
various other bodies. In wartime, the cabinet may be delegated significant
law-making power "for the effectual prosecution of the war". Local
authorities (municipal authorities) also have this sort of power to make
"delegated legislation". This power must not be too wide and must be
exercised intra vires (within the scope of the power) not ultra vires (beyond
the powers). The courts are often asked to rule on this branch of
administrative law.
(i) Accountability of politicians

There are checks and balances in the system of government. These curtail
abuse of power by strong individuals or groups. Having the executive or
Ministry (Ministers in Cabinet) "responsible" or answerable to the Dewan
Rakyat is one of these checks. A Minister answers to parliament and cannot
mislead the parliament. In parliament, the law-making assembly, our beliefs
and interests are articulated by our elected representatives in the lower
house; and the Senators in the upper house.
The dominant party, or coalition of parties, holds a majority of seats in the
lower house and, less often, the upper house (the Dewan Negara). The
party, through its organisers or "whips" and party leaders, has control of
how its members vote. Generally, votes are on party lines. Therefore,
individual members of parliament are not answerable tothe parliament so
much as to their party. Some issues, for example, euthanasia and abortion
which are seen as personal conscience matters. Members may vote
according to their beliefs, irrespective of their political party's line,
(although the referendum would be a better device for assessing the
nation's view on such important matters).
Occasionally, a member may "cross the floor" and vote with the opposition on
some matter of importance. This is politically rare and risky for the member. It
is also relatively rare also to have what is called a Private Member"s Bill. Such
bills may arise when it is not part of government policy to put forward the
legislation, but a back bencher or a member of the opposition feels strongly on
a matter and puts a statute forward in a private capacity.
New Zealand in the 1990s opted for a system of proportional voting which
lets minority parties have members in parliament. This reduces big party
politics, the reformers argue to the New Zealanders, who were weary of
their dramatic economic reforms. The new system is intended to make
members of parliament more representative of the people, more answerable
and less dependent on political party pressures and patronage.

(ii) Responsible government

The federal government is "responsible" to the Dewan Rakyat and the
Dewan Negara. Governments spring from the parliament. The party, or
coalition of parties, that holds a majority of seats in the Dewan Rakyat is
asked by the King, after the election, to form a government. If it loses its
majority, the government must, by convention, resign. Once the Dewan
Rakyat and the Dewan Negara pass a bill, it becomes law. The government
of the day initiates most bills. Most bills are initiated in the Dewan Rakyat,
for most Ministers in charge of ministries sit there. If the relevant Minister
sits in the Dewan Negara, the bill may begin there.
The Dewan Negara may pass bills without amendment, or pass them with
amendment, or delay them. It cannot reject any bills because Article 66
effectively reduces the power of the Dewan Negara to that of a delaying
power than a preventing power. With money bills, the Dewan Negara may
not initiate them, but may request amendments before passing them.
Art 67 provides that a money bill signified by the Minister of Finance to be more
than incidental cannot be introduced or moved except by a minister in the Dewan
Rakyat. However, it must be passed to the Dewan Negara at least one month before
the end of the session. And if not passed by it without amendment within a month, it
may be presented for the royal assent, provided the Speaker certifies that the
provisions of Article 68 have been complied with.
Under Article 68, any bill, which is not a money bill, observes similar rules except
that the Dewan Negara's delaying period is a maximum one year and one month
rather than one month. However, neither of these procedures applies to a
constitutional amendment.
The Dewan Negara is a check on government. It scrutinizes bills, delegated

legislation, government administration, and government policy in general. A
vigorous Dewan Negara committee system investigates issues of the moment.
The Senate is not a weak forum. It is a genuine check on the government of

the day.
(iii) State parliaments
The individual states have their own written Constitutions, separate from
and in addition to the Federal Constitution. State Parliaments are similar in
format to the Federal Parliament. All states in Malaysia have a unicameral
system. This house is called the Legislative Assembly.
Each assembly consists of the ruler and a number of members elected
directly by the people of the state. The legislative assembly in Sabah,

number of members consists of not only elected members but also members
appointed by the Yang Di-Pertua Negeri. The States also each have an
Executive Council which is essentially equivalent to the cabinet in the
Federal Government. This council is presided over by the Menteri Besar
who has been appointed by a ruler or a Yang Di-Pertua Negeri.
(iv) The Malaysian political system

Malaysia's political institutions and practices follow the Western liberal
democratic tradition, reflecting British and North American models.
The Malaysian federation has a three-tier system of government based on the
Westminster tradition, and characterised by the separation of powers to provide
checks and balances: at the national level and under the provisions of the
Constitution, the Legislature (the Dewan Rakyat and the Dewan Negara), the
Executive Government, and the Judiciary, which are responsible for all matters
of national interest; at the State and Territory level and under the relevant
statutes, a Legislature, Executive Government and Judiciary, are all responsible
for matters specifically relevant to the States and Territories; and approximately
900 local government bodies at the city, town and municipal level.
Elections are held regularly and governing political party since
Independence has been the Barisan National which is made up of UMNO,
MIC and MCA and other component parties.
(c) The Judiciary will be discussed in our next topic (Topic 5).
ACTIVITY 4.1
Evaluate your understanding by giving a brief answer for each of the
following simple questions.
1. What are the three Constitutional powers in Malaysia?
2. What does the Federal Parliament consist of as stated by Article 44
of the constitution?
3. In whom is vested the executive power and who exercises it?
4. What can Law which is made by Parliament Legislative Delegation
be called as what?
5. How are check and balances carried out in the system of
government?

4.1.1 Federal and State Constitution
SELF-CHECK 4.2
Can you think of the difference between Federal and States constitution?
The powers of the Federal Parliament are laid down in a written Constitution.
State parliaments are subject to the provisions of this as well as their own State
Constitutions. The Malaysian Constitution can be amended; Article 159 provides
four different methods of amendment. They are as follows:
Figure 4.5: The four methods of amendment
State Constitutions, like the Malaysian Constitution, originate from British

statutes. Power to change them, however, lies within their legislatures and not
with a combination of parliament and the people voting at referendums. Broadly,
the division of powers between the Federal and State Parliaments follows the
American model of federation.
The Cabinet is the major policy making agency of Federal Government in

Malaysia and is presided over by the Prime Minister. Apart from announcements
of decisions by the Prime Minister or other authorised Ministers, there is no
public record of its proceedings. Cabinet is serviced by a secretariat within the
Department of the Prime Minister and Cabinet. Wherever necessary, legal effect
is given to Cabinet decisions by the Executive Council, a formal body presided
over by the Governor-General and usually attended by two or three Ministers of

State, although all Ministers are members. The purpose of the Executive Council,
like the Queens Privy Council in Britain, is essentially to:
receive formal advice;
make appointments;
accept resignations;
issue proclamations and regulations; and
approve the signing of formal documents.
Similar procedures of Cabinet decision-making are followed by Malaysias State

Governments.
4.1.2 The Federal Government

The Federal Parliament is bicameral, having two chambers which are:
9 the Dewan Rakyat also known as the House of Representatives (Lower
House); and
9 the Dewan Negara also known as the Senate (Upper House).
A system of Cabinet or "responsible" government based in the British

Westminster tradition is practised. The party or coalition of parties commanding
a majority in the Dewan Rakyat becomes the government and provides the
ministers (including the Prime Minister), all of whom must be members of the
Parliament. The Ministry remains collectively responsible to the Parliament and
through it to the electors, for government actions.
4.1.3 State Governments

All State parliaments are unicameral made up of one house. The House is the
Legislative Assembly. Under the Federal Constitution, State Governments are
responsible for the residue of powers not administered by the Federal
Government. These include:

education,
transport,
law enforcement,
health services; and
agriculture.
(a) Local Government

The powers of local government vary from state to state and are the
responsibility of State Governments under the relevant legislation.
Generally they include:
town planning weights and measures and

construction and maintenance of other regulations
roads the development and
streets and bridges maintenance of parks
water recreation grounds
sewerage and drainage systems swimming pools
public health and sanitary services public libraries
supervision of building community centers
administration of slaughtering
administration of slaughtering
Some local government bodies operate public business undertakings such as

transport systems or gas and electricity reticulation.
The powers of local government normally derive from legislation enacted by
their State parliaments and their operations usually are subject to supervision by
a department of their State Government. Finance for their undertakings is
obtained through rates and from the Federal and State Governments.
(b) Doctrine of the Separation of Powers

The Constitution confers the legislative, executive, and judicial powers of
the Federal Government on three different bodies which are established by
the Constitution which are the Parliament, the Executive, and the
Judicature. Legislative power is the power to make laws. Executive power
is the power to administer laws and carry out the business of government
through such bodies as government departments, statutory authorities and
the defence forces. Judicial power is the power traditionally exercised by
courts such as the conduct of criminal trials and determining disputes in
relation to such things as contracts and motor accidents.

Despite the structure of the Constitution there is no strict demarcation between

the legislative and executive powers of the Federal Government. Only the
Parliament can pass Acts, but these Acts often confer on the Executive the power
to make regulations, rules and by-laws in relation to matters relevant to the
particular Acts.
For example, the Parliament may enact in the Customs Act that no person may
bring a 'prohibited import' into Malaysia and then leave it to the Executive to
specify in the Customs Regulations what is a 'prohibited import'. This delegation
of legislative power is not as extreme as it may appear, however, as both houses
of Parliament usually retain the power to 'disallow' (i.e. reject), within a specified
time, any regulation which has been made by the Executive.
The distinction between the Parliament and the Executive Government is further
blurred by the fact that the Prime Minister and the other Government Ministers
must be members of Parliament. This reflects the principle of responsible
government (discussed below) under which Government Ministers must be
members of, and accountable to the Parliament.
By contrast, the separation between the Judicature on the one hand and the
Parliament and the Executive on the other is strict. Only a court may exercise the
judicial power of the Federal Government, so that, for example, the question
whether a person has contravened a law of the Federal Parliament (for example,
by bringing a 'prohibited import' into the country) can only be conclusively
determined by a court.
ACTIVITY 4.2
Why is there a need for separation of powers?
Browse the following website, http://jurist.law.pitt.edu and

http://www.parlimen.gov.my/ to find out who sits in both Dewan Negara
and Dewan Rakyat in our Parliament

4.1.4 Legislative Powers

A proposal for a law, or legislation, which is introduced into Parliament, is called
a bill. Bills are considered consecutively by the two Houses of the Federal
Parliament, which are the Dewan Rakyat and the Dewan Negara. The two
Houses must agree to a bill in identical terms before it can be transmitted to the
King for assent, which marks its passage into law.
Article 66(4) of the Federal Constitution, as amended by the Constitution (amendment)

Act 1994, The King shall within thirty days after it is presented to him, assent to the
Bill by causing the Public Seal to be affixed thereto. The King has no power to refuse a
bill and as explained above, Dewan Negara cannot refuse a bill, it only has a delaying
power. When a bill is ready to be introduced to Parliament, copies are printed so that
they may be widely available once the bill is in the public domain. Until its
introduction, a bill is subject to conventions of confidentiality which protect the
privacy of the deliberations of government. After introduction, however, bills are
public documents and are available through the Federal Gazette.
Most bills are introduced first in the Dewan Rakyat because most ministers are
there. But bills may also be introduced first in the Dewan Negara. A new bill in
Parliament generally occurs only after notice of it is given. A minister responsible
for a bill will normally give notice the day before he or she intends to introduce a
particular bill. This is a formal procedure called giving a notice of motion. The
motion, moved by the minister on a subsequent day, is that a certain bill be
introduced. When that motion is agreed to by the originating House, the bill is
formally introduced and read a first time. There is usually no debate on the bills
first or introductory reading.
By the time they pass each House, bills will have been read three times. The
terminology is of ancient origin going back to times before highly mechanised
printing and widespread literacy, when the Clerk of a House would read the bill
aloud from cover to cover at each stage of the deliberations. Nowadays, only the
title of the bill is read aloud. The first reading is followed by debate on the
principle or policy of the bill (the second reading debate). Agreement to the bill in
principle is indicated by a second reading, after which the detailed provisions of
the bill are considered by one of a number of methods (see below). Bills may also
be referred by either House to their specialised standing or select committees.
Agreement to the policy and the details is confirmed by a third and final reading.
These processes ensure that a bill is systematically considered before being
agreed to.

The debate which occurs before a bill is read on a second time which represents
the major policy debate on the bill. It is opened by the minister responsible for the
bill or in the case of a private senator or member's bill, by the senator or member
sponsoring the bill. The minister's second reading speech describes the principle
of the bill and the government's purpose in proposing it. The minister is followed
in the debate by opposition and other government speakers who have an interest
in the bill. Senators and members may speak only once in the debate on the
second reading, for up to either 20 or 30 minutes in accordance with the relevant
standing orders.
Following the second reading, or agreement to the bill in principle, each House
considers the bill in detail, although this stage is often dispensed with, by
agreement, in the Dewan Rakyat. This is called the committee stage or committee
of the whole.
Proceedings are conducted by the Chairman of Committees rather than by

the Speaker who presides over the plenary or parent House. The Chair takes
the seat immediately below that of the presiding officer. Decisions of the
committee are subject to ratification by the plenary body but, in practice, the
two bodies comprise the same members. When the committee of the whole
has worked through the bill, considering and deciding on any amendments
that are moved, the Chair reports the committees actions to the Speaker and
the plenary body then determines whether to adopt the committees report
and any amendments it has made.
Ratification by the plenary body provides an opportunity prior to the final

passage of the bill to initiate any further action that is necessary to conclude
the proceedings or that arises from consideration of the bill. For example, it
may be necessary to reconsider parts of the bill or certain amendments and
the bill is therefore recommitted; that is, referred back to the committee for
further consideration.
Alternatively, it may be desirable to refer part of the bill or amendments or an

issue arising from the bill to a standing or select committee for examination.
This action can be initiated at this stage of proceedings. It is also possible to

debate a motion in order to adopt the committee's report. However, the Dewan
may replace consideration in committee as a whole with consideration in detail
by the plenary itself.
During consideration in detail, members may speak any number of times for up
to five minutes each, as senators may speak during committee of the whole for up

to 15 minutes on any number of occasions. This enables a dialogue to develop

between the minister responsible for the bill and other senators or members who
may have questions about the bill or suggestions for changing it.
It is during committee of the whole or consideration in detail that amendments to

the bill may be moved. Amendments are proposals to alter the bill and may be
moved by any senator or member in their respective Houses. The Dewan Rakyat
must however, agree to any amendments made by the Dewan Negara. Likewise
the Dewan Negara must agree to any amendments made by the House to a bill
first introduced in the Dewan Negara. The aim is for both Houses to agree to the
bill in identical terms so that it can then become a law.
On the adoption of the report from the committee as a whole, or at the conclusion
of the consideration in detail stage by the Dewan Negara, that House reads the
bill a third time, signifying final agreement to it. The process is then repeated,
with appropriate variations, in the other House.
An act of Parliament will come into force when it's published. The publication is
done in the Warta Kerajaan Malaysia (Federal Gazette).
Parliament Building in Kuala Lumpur

Source: www.sabah.edu.my/kjs/event/kl/parlimen.htm
(a) Different Types of Statutes

Statutes may be classified in various ways. Some of these classifications are
exhibited in Table 4.1.

Table 4.1: Classification of Statutes
TYPE OF FACT EXPLANATION

This type of legislation makes up the bulk of statutes that exist
Public Act
today. These are public in the sense that they have general
operation, applying to the whole society.
Private Act This is becoming increasingly rare. The operation of these acts is
confined to particular groups or individuals.
This type of act plays an important role in ensuring easy
Consolidating accessibility to the law. A consolidating act brings together all the
Acts existing statue law on a subject. This is done by parliament
repealing existing Acts and re-enacting their provisions in a single
statute.
Extensive use is not made of reprinted acts as an alternative to
Reprinted Acts consolidations. The original act is reprinted to incorporate the text of
amendments which have been made.
Whenever doubts are expressed as to the meaning, scope or validity
Declaratory Acts
of a particular law parliament may legislate to clarify the position.
It is a statute which draws together both statue and case law on a
Codes topic. Example of a code id the Code Napoleon which was a
complete statement of French law at the time it was compiled.
(b) Money Bills

The powers of the two Houses to initiate and amend bills are identical.
However, except in relation to bills that impose taxation or appropriate
money. Such bills originate from the government (represented by the
Minister) in the House of Representatives or by private Members of
Parliament.
Bills which impose taxation or appropriate money for the ordinary annual services of
government may not be amended by the Dewan Negara. Thus if the Dewan Negara
wishes to amend such a bill, it must request the Dewan Rakyat to make the amendment.
When this occurs, the bill is not read a third time in the Dewan Negara until the
House advises and it has made the requested amendment or, in the case of the
House declining to make the amendment, until agreement between the Houses
has been reached.
ACTIVITY 4.3
Based on your understanding, give an outline of the procedure on how a
bill is introduced in the Parliament.

Find out more Acts of Parliament by visiting http://www.lawyernet.com
4.1.5 Delegated Legislation and Subsidiary

Legislation
Many Acts empower the King, a minister or statutory office-holder to make rules
or regulations. Regulations generally provide for the finer details of
administration, particularly those which are subject to frequent change, such as
the rate of an allowance.
Under section 3 of the Interpretation Act 1948 and 1967 (Act 388) (consolidated and
revised 1989) defines such legislation as "any proclamation, rule, regulation, order,
notification, by law or other instrument made under any Act, Ordinance or other
lawful authority and having legislative effect".
These subordinate rules may be called as:

regulations,
determinations,
instruments,
directions,
by-laws; and/ or
notices.
Collectively, they are known as delegated or subordinate legislation or subsidiary

legislation, because Parliament has delegated to a specific person the power to
make those rules.
Each year Parliament passes more than 200 bills but around 1800 pieces of
delegated legislation are made without going through Parliament. All of them
must be tabled in, or presented to, both Houses of Parliament and are subject to
disallowance by either House. If a regulation is disallowed, it ceases to have
effect. In practice, the scrutiny and disallowance of delegated legislation takes
place in the Dewan Rakyat and or Dewan Negara.

Unfortunately in Malaysia there is neither scrutinising committees like is England nor

as in Australia where The Senate's Regulations and Ordinances Committee examines
all delegated legislation against criteria similar to those used by the Scrutiny of Bills
Committee, and takes up with the Minister any potential problems, particularly when
it appears that an action empowered by a regulation would more properly be
provided for in an Act under Parliament's direct scrutiny. An unresolved problem
results in a notice of motion for the disallowance of the offending regulation. Most
notices of motion for the disallowance of regulations are given by the Chairman of the
Regulations and Ordinances Committee, but any senator may give such a notice. The
Senate has 15 sitting days to deliberate and vote on whether the regulation should be
disallowed. If the matter is not resolved within the 15 sitting days, the regulation is
automatically disallowed. Through the work of this committee, the Senate monitors a
significant area of legislation which Parliament does not directly approve.
Therefore this allows a gap in the legislative control of subsidiary legislation.

However, by way of judicial review, the courts ensure control over subsidiary
legislation. The other two forms of controls are consultation and publication.
ACTIVITY 4.4
List the various types of Acts.
4.2 UNWRITTEN LAW
SELF-CHECK 4.3
What do you understand about unwritten law as opposed to written law?
Law that is not written, is law which is not enacted by Parliament or the State
Assemblies and not found in the constitution be it Federal or state.
The sources of unwritten law as follows:

Principles of English law applicable to local circumstances as explained above.
Judicial decisions of the superior courts, namely, the High Court and the
Supreme Court will be discussed further in Topic 5.
Customs of the local inhabitants which have been accepted as law by the
courts as explained in Topic 1.

4.3 ISLAMIC LAW

4.3.1 Sources of Islamic
The sources of Islamic law may be divided into primary sources and secondary
sources. The primary sources are the sources that are agreed by all the jurists of
Islamic law. They are shown in Figure 4.6.
Figure 4.6: The sources of Islamic law
Table 4.3: Explanations of Primary and Secondary Sources
Primary Sources Explanation
Quran The words of Allah.

Sunnah The rules deduced from the traditions. These traditions will be
from the saying or conduct of teachings of Prophet Muhammad.
Secondary Sources Explanation

Ijma Consensus of jurists of any particular era on a judicial rule.
Qiyas Deductions from reasoning by ijtihad or analogy.
4.3.2 The Recognition of Islamic Laws

Islamic law was largely observed by the Malays prior to European Conquest in
Malacca. In the Malay states, the status of Islam was different from strait
settlements.
In these states under the treaty agreements between the rulers and the British, the
rulers asked and accepted advice from the British. However, they were
independent in the decisions when it concerned Islam and Malay customs. Given
the fact that English law was not formally received until 1937, Syariah law should
have been applicable.

However, the courts viewed Syariah law as personal law in family matters. There
was conflict between which law (Customary law or Syariah law) which should
prevail. This was with respect to inheritance and the division of property jointly
acquired during marriage on the dissolution of such marriage. In Negeri
Sembilan and some parts of Melaka, the adat perpatih prevailed. The recognition
was largely due to British policy which accepted adat as an exception to syariah.
In the states of Sabah and Sarawak, the history of Syariah differs. In the
administration handbook, much of the native laws have included the syariah.
There were no separate syariah courts as there were in the Malay Peninsula.
Syariah law until recently was administered as part of native law.
Therefore it would not have been strange to find terms such as "Muslim adapt" or
"Muslim law and customs" and "Native Muslim law". In 1895, the Malay states
agreed to accept a Resident General whose advice must be accepted in all maters
of administration "other than those touching the Mohammedan religion".
It was not until 1909 a new agreement was drafted for the constitution of a
Federal Council. The consequence that flowed from this agreement was that the
new legislature enjoyed primacy over State laws except those "questions
connected with Mohammedan religion, mosque, political pensions, native chiefs
and Penghulus" and prerogatives of the Rulers. In 1957, the Constitutional
commission recommended that Islam shall be the religion of the State of Malaya.
The final provision appeared in Articles 3 and 11 of the Federal constitution.
Article 3:
"Islam is the religion of the Federation; but other religions may be practiced in peace
and harmony in any part of the Federations".
Article 11(1):
"Every person has the right to profess and practice his religion and, subject to Clause
(4) to propagate it".
Clause (4):
"State law in respect of the Federal Territory, federal law may control or restrict the
propagation of any religious doctrine among persons professing the religion of Islam".
The law was administered according to the adat and the syariah by chiefs and
penghulus under the traditional Malay system. The British rule however, created
a central administration and a separate system for Islamic law. This is the legacy
of the colonial rule.

M Yegar in his book entitled Islam and Islamic Institutions in British Malaya:
Policies and Implementation stated:
ACTIVITY 4.5
Why do Peninsular and the states of Sabah and Sarawak have a different
history of syariah?
4.3.3 The Position of Islamic Law in the Constitution

However, it does not declare that the federation is an Islamic state. This was
clearly stated in 1958 by Prime Minister Tunku Abdul Rahman in a debate in the
Federal Legislative council.
However, the civil rights of non-Muslims are not affected.
Islam has a constitutional status at both federal and state level. Although islamic
law is not included in Article 160 of the Federal Constitution, this section defines

law to be written law, the common law and any custom or usage having the force
of law.
Islamic law is a state matter, except in the federal territories of Kuala Lumpur,
Labuan and Putrajaya. This is clearly stated in item 1 of List 11 (State List) in the
Ninth Schedule of the Federal Constitution. This list clearly shows that the state does
not have the full or exclusive power to legislate on Islamic law in its true sense. The
state legislative assembly may only enact Islamic law if it concerns matters specified
in Item I and Islamic aspects of other matters in the State and Concurrent lists, and
residual matter are legislated. Some examples are shown in Table 4.4.
Table 4.4: The Example of Matters Legislated

MATTER ACT
Family Matters Islamic Family Law Act (Federal Territories) 1984, Small
Estates Distribution Act.
Syariah Civil Procedure Syariah Court Civil (Mal) Procedure Act (Federal Territories)
1998.
Syariah Criminal Syariah Court Criminal Procedure Act 1998.
Procedure
Islamic Evidence Islamic Law Evidence Act (Federal Territories) Act 1998.
Islamic Banking System Islamic Banking Act 1983.
Islamic Takaful Act 1984
Takaful/Insurance
Administration of Islamic Administration of Islamic Law (Federal Territories) Act 1993.
Law
States Enactment

The Islamic Banking Act 1983 (Act 276) and the Takaful (Islamic Insurance) Act
1984 (Act 312) concern the Islamic practice and principles in banking and
insurance. Both fall under the federal jurisdiction. The Syariah Court (Criminal
Jurisdiction) Act 1965 (Act 355) (Revised 1988) confers a limited criminal
jurisdiction upon the syariah courts.
Malaysia is a federation of 13 states with both State and Federal level executive
and legislative power; civil law come under the federal legislature jurisdiction but
persons of Malay race are defined as Muslims under the constitution and the
states are empowered to make personal laws governing Muslims and laws
relating to religious offences and to establish and regulate syariah courts for the
application of Islamic law.
Clarification of points of Islamic law comes under the jurisdiction of each States
Council of Religion and Malay Custom. The council generally issues fatwa, which
are in keeping with Shafie tenets except where such may contradict with public
interest. In such circumstance the council with the approval of the state
authorities may follow minor shafie views or interpretation from other three
major Sunni mazhab.
There are three levels of syariah courts in a system parallel to and independent of
the civil courts. They are as shown in Figure 4.7.
Figure 4.7: Levels of syariah courts

(a) The Syariah Subordinate Court

This court has jurisdiction as indicated by state legislation over criminal
suits liable to punishment up to RM2,000 and/or imprisonment up to two
years and civil suits in which the value of the subject in dispute is up to
RM100,000 or rights not estimable in cash.
(b) The Syariah High Court

This court has appellate jurisdiction over Subordinate court decisions in civil
suits of RM500 or more and criminal suits. This court has original
jurisdiction as indicated by state legislation in criminal suits and civil
jurisdiction over family law, testate and intestate succession, gifts inter vivos
and waqaf, in cases where all the parties are Muslim.
(c) The Syariah Appeal Court

This court has appellate jurisdiction over decisions arising out of the syariah
high court's original jurisdiction. All appeals are heard by the Chief Syarie
Judge.
ACTIVITY 4.6
List the sources of Islamic Laws.
Recently Terengganu has introduced a bill on Hudud law. Does this

violate Federal Constitution? Find more information by surfing the
following website, http://www.dapmalaysia.org/
EXERCISE 4.1
1. Explain the meaning of doctrine of separation of powers.
2. All statutes begin as a bill which is a proposal for a piece of

legislation. Explain the steps taken for a bill to become an Act.

Malaysia is a constitutional monarchy, nominally headed by the Yang Di-

Pertuan Agong (paramount ruler"), and customarily referred to as the king.
Kings are elected for 5-year terms from among the nine sultans of the
peninsular Malaysian states. The king also is the leader of the Islamic faith in
Malaysia.
Executive power is vested in the cabinet led by the prime minister; the
Malaysian constitution stipulates that the prime minister must be a member
of the lower house of parliament who, in the opinion of the Yang Di-Pertuan
Agong, commands a majority in parliament. The cabinet is chosen from
among members of both houses of parliament and is responsible to that body.
The bicameral parliament consists of the Senate (Dewan Negara) and the
House of Representatives (Dewan Rakyat). All 70 Senate members sit for 3-
year terms; 26 are elected by the 13 state assemblies, and 44 are appointed by
the king. Representatives of the House are elected from single-member
districts by universal adult suffrage. The 219 members of the House of
Representatives are elected to maximum terms of 5 years. Legislative power is
divided between federal and state legislatures. (The numbers of members of
each house may change from one election to another election).
The federal government has authority over external affairs, defense, internal
security, justice (except civil law cases among Malays or other Muslims and
other indigenous peoples, adjudicated under Islamic and traditional law),
federal citizenship, finance, commerce, industry, communications,
transportation, and other matters.
The legal system in Malaysia is based on a set of written and unwritten laws.
Among the written are: the Federal Constitution together with the
constitutions of the 13 states comprising the Federation, legislations enacted
by the Parliament and State Assemblies, and delegated or subsidiary
legislation made by bodies under powers conferred on them by Acts of
Parliament or State Assemblies. The unwritten laws are comprised of the
principles of English Common law adapted to local circumstances, case law
and local customary law; Muslim law is also an important source of law
applicable only to the Muslim population and administered by a separate
system of courts. The Malaysian Constitution provides for the exercise of
powers by the Legislature, the Executive and the Judiciary.

Topic X Judiciary
5
LEARNING OUTCOMES
1. Recognise the seven court hierarchies in Malaysia;
2. Explain the functions of the Subordinate Courts in Malaysia; and
3. Assess the importance of Malaysian Superior Courts; and
4. Summarise the various types of courts in Malaysia.
X INTRODUCTION
The system of courts which is established in Malaysia is modeled substantially on
the system of courts, which existed in England. The Constitution provided for the
powers exercised by the legislative, executive and judiciary.
Criminal and civil matters are heard and determined by the judiciary. It has the
jurisdiction to pronounce on the legality of legislative, executive acts and
interpret the constitutions (Federal and State). The Superior Courts (Federal
Court, Court of Appeal and High Court) have the status of being superior courts
of record. This means that the decision of a superior court is regarded as valid
and unimpeachable unless it is set aside on appeal.
By contrast, the decisions of inferior courts are subject not only to appeal in the
normal manner but also to review as to whether the matter was within the
jurisdiction of that court.

TOPIC 5 JUDICIARY W 99
Figure 5. 1: Hierarchy of the court
5.1 SUBORDINATE COURTS
SELF-CHECK 5.1
Have you attended any court trial before? Before proceeding to the first
topic of the topic, think about the following question. What do you
understand about the function of subordinate courts such as the
Magistrate court and Session court?
Penghulu Courts, Magistrate Courts and Sessions Courts are the subordinate
courts in Peninsular Malaysia.

100 X TOPIC 5 JUDICIARY
The subordinate courts are highlighted in Figure 5.2 as follows:
Figure 5.2: The subordinate courts
5.1.1 Penghulu Court

The Penghulu court is the lowest level of subordinate courts in Peninsular
Malaysia. It deals with civil cases and criminal cases. This court is presided by a
penghulu (a headman). His appointment is done by the State Government for a
district (mukim).
In civil cases, the penghulu hears and determines cases not exceeding RM50.00.
The parties to the proceedings must be of Asian race and must understand and
speak the Malay language.
In criminal cases, the penghulu hears minor offences trials, which are, punishable
by a fine not exceeding RM25.00. The party charged must be of Asian race. Any
persons charged may elect to have the case tried before a Magistrates' Court.
5.1.2 Magistrate Court

The Magistrate court deals with civil cases and criminal cases. This court is
presided by a magistrate where, there are two classes of magistrates. They are:
(a) First class Magistrate; and
(b) Second class Magistrate.
A first class magistrate has an original and appellate jurisdiction.
Section 85 of the Subordinate Courts Act, 1948 (Revised 1972) amended by the
Subordinate Courts (Amendment) Act, 1978 states that a first class magistrate has

the jurisdiction to try all types of offences which has a maximum term of
punishment not exceeding ten years imprisonment, or with a fine.
The magistrates may try offences under the Penal Code which is Sections 392
which deals with robbery and S457 which deals with trespass and housebreaking
by night in order to commit an offence. Sentencing by a first class magistrate is
prescribed under Section 87 of the SCA 1948. This section provides that the
magistrate may pass any sentence allowed by law not exceeding:
(a) five years imprisonment;

(b) a fine of RM10,000;
(c) whipping up to twelve strokes; or
(d) a combination of any of the sentences above.
Under the civil jurisdiction, the magistrates have the jurisdiction to try all actions
where the amount or value of subject matter does not exceed RM25,000. The
magistrate may exercise a higher amount than RM25,000 if both parties agree in
writing.
In a criminal jurisdiction, under S88 of the SCA, the magistrates may try offences
which the maximum term of imprisonment does not exceed twelve months or
punishable offences with a fine only. A second class magistrate has the power to
pass sentences allowed by law which are:
(a) not exceeding six months imprisonment;

(b) a fine not exceeding RM1,000; or

(c) any sentencing combining either of these sentences.
S26-S28 CJA 1964 states that appeals both in criminal and civil cases against
decisions of the Magistrate Courts lie with the High court. In the civil case, the
amount disputed must be RM10,000 or less exception if it is on a question of law.
This monetary limit is not applicable to proceedings of maintenance of wives or
children.
First class magistrates may try the entire small claim. The ceiling for small claims
is RM5,000 which also include any other claim than a debt such as damages. This
is a mandatory procedure, if the recovery of claim is below RM5,000.
5.1.3 Juvenile Court

Criminal offenders below the age of eighteen are tried by the juvenile courts. A
first class magistrate sits here and is assisted by two lay advisers, and one shall be
a woman.
The young offender is tried in camera that is closed to public. This is to protect
the offenders from publicity. The offender will be sent to any approved
institutions or correction schools, if he or she is found guilty. The young offender
may be released by bond with or without sureties. The offender must be in good
behaviour and present for sentencing when called upon. This is not applicable to
homicide offences. The offender may appeal to High Court if he or she is
dissatisfied with the finding or order of the court.

5.1.4 Sessions Court

This court is the highest of the inferior courts. It is presided by a Session court
judge.
Section 69 provides matters relating to:

land,
specific performance or recession of contracts,
injunction, probate and administration of estates,
divorce,
bankruptcy,
trusts; and
accounts.
are excluded from its jurisdiction. It may also hear and determine any action for
the recovery of immovable property and for the recovery of rent or mesne profits
or damages where the money claimed does not exceed RM96,000 or where the
rent payable in respect of the premises does not exceed the sum of RM96,000 per
annum or either RM1000 per mensem.
ACTIVITY 5.1
Abu is a 12 year old boy who was caught stealing in a shopping mall. He
was sent for trial to be sentenced. Try identifying the following;
(i) Which court will he be tried at?
(ii) Who will be conducting the trial?
(iii) What would be the possible sentence available for him?

5.2 SUBORDINATE COURTS IN EAST

MALAYSIA
SELF-CHECK 5.2
Do you think there are any difference between the Subordinate courts
in West Malaysia and the Subordinate courts in Sabah and Sarawak?
Under the Subordinate Courts Act 1948 and Subordinate Courts Act (Extension)
Order 1980, the Subordinate Courts consists of three courts which are shown in
Figure 5.3 as follows:
Figure 5.3: Subordinates courts in Sabah and Sarawak
5.2.1 Native Courts

The position and jurisdiction of the native courts are unique.
Native courts exists only in Sabah and Sarawak. This court has the jurisdiction to
decide matters pertaining to native law and customs. The parties to the
proceedings must be natives.

A native in Sarawak is a person who is a citizen and of an indigenous race to

Sarawak. And a native in Sabah is a citizen and is a child or grandchild of an
indigenous race person and born either in Sabah or to a father domiciled in Sabah
at the time of the birth.
(a) Sarawak Court System

The hierarchy of the courts is as illustrated in the following Figure 5.4.
Figure 5.4: Native courts in Sarawak
(i) Native Court of Appeal

As may be seen in the Figure, the highest court is the Native Court of
Appeal. This court is presided over by a president and one or two
persons who are knowledgeable in customary laws.
This court has an appellate, revisionary and supervisory jurisdiction.
The appeal will be from the Resident's Native court by way of petition
for revision.
In the interest of justice, this court may exercise any powers of revision
vested in the High Court. This can be either by an application of an
aggrieved party or on its own accord.
(ii) Resident's Native Court

This court is presided by a resident who is an ex officio First Class
Magistrate who is assisted by two (minimum) or four (maximum)
assessors. This court exercises original, appellate, revisionary and
supervisory jurisdiction. The appeals is with regards land disputes or

native states. The revisionary and supervisory role is over the lower
courts.
(iii) District Native Court

This court is presided over an ex officio First Class Magistrate who is
assisted by two assessors who are either appointed by him or by the
resident. This court exercises original, appellate and supervisory
jurisdiction. This court hears cases on appeal from lower courts. These
disputes involve land matters. The supervisory role is the same as other
appellate courts. This court may impose a penalty of imprisonment not
exceeding two years and a fine not exceeding RM5000.
(iv) Chief's Superior Court

This is the highest appellate court for breaches of customs and offences
relating to family matters, all civil matters the value in which not
exceeding RM2000 and minor criminal matters.
This court is presided by a temenggong or pemanca and is assisted by

two assessors or both sitting with one assessor. This court exercises
original, appellate and supervisory jurisdiction.
The supervisory jurisdiction is over lower courts. This court may impose
penalties of imprisonment not exceeding one year and a fine not exceeding
RM3000.
(v) Chief's Court

This court is headed by a penghulu with two assessors. A penghulu
may sits with two tuai rumah to assist him if it concerns Iban system of
personal law. This court exercises original and appellate jurisdiction.
The appellate jurisdiction is from the headman's court. This involves
native law and custom. This court may impose imprisonment not
exceeding 6 months and a fine not exceeding RM2000.
(vi) Headman's Court

This court is headed by a headman and two assessors. In an Iban
community, this court may constitute a tuai rumah without assessors.

This court has jurisdiction to hear all matter except for land disputes.
This court may impose fine not exceeding RM300.
Under section 11(2) (a) and (b) a native court is entitles to award full
compensation. This is authorized under the various customary laws of
the Dayaks. These courts adopt an inquisitorial system rather than an
accusatorial system.
(b) Sabah Court System

The hierarchy of the Sabah Court system is as illustrated in Figure 5.5.
Figure 5.5: Native courts in Sabah
(i) Native Court of Appeal

This court is the highest in the court hierarchy and is presided over by
a President who is a High Court judge and two other members either
district chiefs or native chiefs. They are appointed by the State
Minister. This court exercises appellate jurisdiction. The native court
can:
dismiss an appeal,
set aside or vary an order,
reduce or increase sentencing or punishments,
request a written report or opinion form the District Native Court
or the Native Court upon any point arising form appeal; and
summon witnesses to give evidence on any matter.

(ii) District Native Court

This court is presides by a district officer together with two district
chiefs or native chiefs, a resident within his district. They are appointed
by the State Secretary. This court exercises appellate, revisionary and
supervisory jurisdiction. The appellate jurisdiction concerns appeals
from the Native Court in the local district where the court is
established.
The revisionary jurisdiction is any native court proceedings that are

irregular, improper or unconscionable. In this instance, it may quash or
vary the decision or direct a rehearing of the case. The supervisory role
is over the native courts. In exercising the courts jurisdiction, it has the
power to recall any witness, take further evidence itself, or direct the
native court to do so or summon an assessor to advise the court on the
matter.
(iii) Native Court

This court is the lowest court in the hierarchy and consists of three
native chiefs or heads man form the territorial jurisdiction of the
particular native courts. The state secretary empowers this person to
adjudicate. The Secretary of State may empower a district chief, a native
chief and a headman from another territorial jurisdiction to hear the
case. This is in particular if there is an expert from outside the territory
or if there is a conflict between the resident headman and chief. The
native court has original jurisdiction.

It hears cases such as shown in Figure 5.6:
Figure 5.6: Cases heard by Native court
The penalties imposed or orders made are divided into two categories, the first
being offences against native law and custom and second being penal offences. In
the former, the court may impose a fine or order imprisonment or order both find
and imprisonment or inflict any mode of punishment authorized by native law
and custom as long as it is within the principle of natural justice and humanity. It
also makes orders of payment of compensation or default of penalty or
compensation and order of imprisonment.
(a) Magistrates' Court

This court operates similarly to the magistrates courts in Peninsular
Malaysia.
(b) Sessions Courts

This court also operate similarly to the counterparts in Peninsular Malaysia.

(c) Juvenile Courts

This court is also similar to the juvenile court in Peninsular Malaysia.
ACTIVITY 5.2
Identify whether these sentences TRUE (T) or FALSE (F).
TRUE FALSE
1. Native Court of Appeal in Sarawak is presided by

Penghulu with two assessors.
2. District Native Courts in Sabah are presided by

district officer alone.
3. Chiefs Superior Court is only available in Sarawak.
4. Under S471 of the Native Court (Criminal

Jurisdiction Act 1991, Native courts can try criminal
offence that does not exceed a fine of more than RM
50,000 only.
5. In an Iban community, Headmans Court may

constitute a tuai rumah without assessors.
Browse to this website www.jurist.law.pitt.edu/world/Malaysia.htm and

gain more information on subordinate courts system.

5.3 SUPERIOR COURTS IN EAST MALAYSIA
SELF-CHECK 5.3
Do you know where the Federal court in Kuala Lumpur is located? Can
you think of any other superior courts other than the Federal court?
Article 121 of the Federal Constitution established the superior courts. Previously
before 1st Jan 1985, the superior courts formed three tier systems which are
illustrated in Figure 5.7.
Figure 5.7: Superior courts before 1/1/1985
As shown in Figure 5.8, appeals to the Privy Council were abolished in two
stages:
Figure 5.8: The abolishment of appeal in Privacy Council
However, the Supreme Court was subsequently renamed Federal Court and a
Court of Appeal was created. The three tier system of superior court now consists
of Federal Court, the Court of Appeal and the two high courts. These are
exhibited in Figure 5.9.

Figure 5.9: Superior courts
5.3.1 Federal Court

Article 121(2) of the Federal Constitution established the Federal Court where it
comprises of the Chief Justice of the Federal Court, the President of the Court of
Appeal, the two chief judges of the High Courts, and four other judges and these
additional judges, may be appointed pursuant to clause (1A). Currently the
number of the federal court judges is seven. Federal court has four jurisdictions as
explained in Table 5.1.
Table 5.1: The Federal Court Jurisdictions
JURISDICTION EXPLANATION
This court has jurisdictions to hear criminal and civil appeal from the
Appellate
High Courts.
This court exercise original jurisdiction on matter on it under Articles
128(1) and (2) of The Federal constitutions ehich provides:
(i) to determine whether a law made by Parliament or by the
legislature of a state is invalid on the ground that it deals with a
Original matter in which it has no power to legislate; and
(ii) to decide disputes on any other question between the States and
the Federation or between the Federation and a State; and in
such a dispute the Federal Court may give only a declaratory
judgement.
The court determines constitutional questions that has arisen in the

Referral
High Court but referred to the Federal court for a decision.
Article 130of the Federal Constitution states that the court can give
its opinion on any question which has arisen or appears likely to
Advisory
arise and which has been referred to it by the Yang di pertuan Agong
concerning the effect of any provision of the constitution.

Palace of Justice
Source: http://www.i-putra.com.my/sites/site.cfm?jd=21
5.3.2 Court of Appeal

Article 121 (1B) established the court of appeal. This court is comprised of the
President of the Court of Appeal and ten other judges. It has the jurisdiction to
determine appeals from the High Court or a judge thereof and any other
jurisdiction as may be conferred by or under federal law.
S68 of the same Act however, puts restriction on the appeals to the Court of
Appeal. Appeals cannot be made where:
(a) The amount or value of the subject matter is less than RM250,000 except with
leave of the court of appeal.
(b) The judgment or order made is by consent of the parties.
(c) The judgment or order relates to costs only.
(d) Where by any written law for the time being in force, the judge or order of the
high court is expressly declared to be final.
Court of Appeal will re-hear the case if it is appealed to the court. It has the
power to order a new trial or reverse or vary the decisions of the high court.
The Court of Appeal in a criminal jurisdiction can hear and determine any criminal
appeal against decision made by the High Court in the exercise of its original

jurisdiction and appellate or revisionary jurisdiction in respect of any criminal

matter decided by the Session's court. The Court of Appeal may summarily dismiss
appeals; confirm, reverse or vary the decisions of the trial courts, order a retrial or
remit the matter with its opinion thereon to the trial court; or make such other
order as may seem just and may by that order exercise any power which the trial
court might have exercised.
5.3.3 High Court
There are two High courts which are the High Court in Malaya and the High Court
in Sabah and Sarawak. The power and jurisdiction of this court is conferred by the
federal law. The High Court comprises of a Chief Judge and not less than four other
judges. A judicial commissioner may be appointed to either of the high courts.
The high court has jurisdiction to exercise these are explained in Table 5.2.
JURISDICTION EXPLANATION
This court has unlimited criminal and civil powers. In criminal matter,
no case may be brought to the High Court unless an offence has been
Original
properly committed for trial after preliminary hearing in a Magistrate
Jurisdiction
court. In civil matters, any matter which cannot be determined in the
subordinate courts is heard before the High Court.
Appellate This court hears civil and criminal appeals from the Magistrates and
Jurisdiction Sessions court.
This court has the power to refer any points of law arising in the appeal
Revisionary
from the decision of the Court of Appeal if in its opinion it is of public
Jurisdiction
interests and of paramount importance.
S35(1) of the Courts of Judicature Act 1964 states that this court has
been conferred general supervisory and revisionary jurisdiction over
Supervisory all subordinate courts. The court may call for the records of any
Jurisdiction proceeding in the subordinate courts if it is considered to be in the
interest of justice. It may remove the case to the High Court or give
such directives to the subordinate courts as it thinks necessary.

5.4 THE INDUSTRIAL COURT

This court was developed under the Industrial Relations Act 1967 and it deals
with trade disputes and has jurisdiction on matters concerning employees,
employers and trade unions. The court comprises of a President appointed by the
Yang Di Pertuan Agong and a panel of person appointed by the Minister of Law.
S33A (1) provides that Reference may be made to the High court on a question of
law.
Among the questions of law are:

(a) questions which arose in the court of the proceedings;
(b) the determination of which by the court has affected the award;
(c) which, in the opinion of the court , is of sufficient importance to merit such
reference; and
(d) the determination of which the by the court raises, in the opinion of the
court, a sufficient doubt to merit such reference.
ACTIVITY 5.3
Explain briefly the composition of the superior courts.
ACTIVITY 5.1
Describe the hierarchy of court and jurisdictions of courts in Malaysia.

The courts play a role in law making. Malaysia has court hierarchies at the
federal and state levels. The highest court in the Federal hierarchy is the
Federal Court. It also forms part of the State court hierarchies and is the
highest court in these hierarchies. This court has an original and an appellate
jurisdiction. The Court of Appeal and the High Courts also forms part of the
superior court hierarchy. Magistrates Court, Juvenile Court, Sessions Court
and Penghulu Court (in Peninsular Malaysia) are part of the subordinate
hierarchy.
In East Malaysia, the native courts are the subordinate courts. It consists of
Native Courts, Sessions Court and Magistrates Court. Beyond the issues of
the interface between state and federal jurisdictions, the court system in
Malaysia has had to face many other challenges. One of these is the pressure
on the courts from the number of cases which they are called upon to decide.
Long delays in cases reaching trial in intermediate and superior courts has led
to pressure for improved efficiencies in the court system and better
management of cases.

Topic X Judicial
6 Precedent
LEARNING OUTCOMES
1. Elaborate the concept of judicial precedent;
2. Discuss the five general rules of the doctrine of precedent; and
3. Assess the four reasons of problems with the doctrine of precedent.
X INTRODUCTION
In a dispute between two parties, the court must first establish what happened. The
facts are usually determined by the trial judge. Although in some countries jury may
be used, in Malaysia, it was abolished in the 1980s. Once the facts are determined, the
judge will then make the application of law to the facts to determine which party
would succeed. The doctrine of judicial precedent is important because it is the ratio
decidendi of a previously decided similar case, decided by a higher court to the
current facts that will decide the solution of the case.
6.1 JUDICIAL PRECEDENT
SELF-CHECK 6.1
What do you understand about judicial precedent? Does every law system
have this form of doctrine of precedent?
The weight or authority of rules of law derived from cases may vary. These
relative weights are determined by the doctrine of precedent. Nearly all legal
systems (including civil law systems) have some form of a doctrine of precedent,
though its provisions may vary. Even a legal system which explicitly prohibits

118 X TOPIC 6 JUDICIAL PRECEDENT
the citation of earlier cases in court could be said to have a doctrine of precedent
in that it has a rule which regulates the use of precedents.
6.1.1 Stare Decisis
Countries which derive their legal systems from the English common law are said
to employ the doctrine of stare decisis. They are regarded by many as having a
strict rule of precedent, although there is a substantial body of opinion that, in
fact, the rule is not applied as strictly as the theory indicates.
The general rules of the doctrine of precedent in common law systems can be
summarised as shown in the following Figure 6.1:
Figure 6.1: The general rules of doctrine of precedent

TOPIC 6 JUDICIAL PRECEDENT W 119
The general rules of doctrine of precedent will be further elaborated as follows.
(a) Each Court is Bound by Decisions of Courts Higher in its Hierarchy
(b) A Decision of a Court in a Different Hierarchy may be of Considerable

Weight but Will Not be Binding
In the case of Director General of Inland Revenue v Kulim Rubber

Plantations [1987] 1 MLJ 214, the judge in this case referred to the decisions
of the courts in Australia, England and New Zealand and stated:
(i) Only the ratio decidendi (the judges decision on the material facts) of
a case is binding
See the case of Carlill v Carbolic Smokeball Co (discussed under ratio

decidendi).
(c) Any Relevant Decisions, Although not Binding, may be Considered and
Followed
The rule in the English case of Young v Bristol Aeroplane Co Ltd was
followed by the Federal Court. The practice of following this rule can be
traced back to the Court of Appeal case of Hendry v De Cruz (1949) 15 MLJ
Supp 25. In this case the court was faced with the question as to whether it
was bound to follow the previous decision in Butter Madden v
Krishnasamy (unreported). To answer the question the court stated:

The question whether the Court of Appeal in England should be bound to

follow its own decisions remained in doubt until 1944 and was then settled
by the case of Young v Bristol Aeroplane Company Limited:
(d) Precedents are not Necessarily Abrogated by Lapse of Time

The present Federal Court is the successor of the Supreme Court and as
such bound by decisions of the latter.
The courts at the top of the hierarchy normally treat decisions of lower, but
still superior, courts within the hierarchy as highly persuasive. Decisions of
superior courts within a different hierarchy, while not binding, may also be
considered highly persuasive. For example the Federal Court in the case of
Malaysia National Insurance v Lim Tiok [1997] 2 MLJ 165 adopted the
criteria laid down by the House of Lords in Food Corporation of India v
Antclizo Shipping Corporation [1988] 2 All ER 513.
In addition, the doctrine means that appellate courts are either bound by
their own decisions or will depart from them only with reluctance. For
example in the case of Koperasi Rakyat v Harta Empat [2000] 2 AMR 2311
in this case, the defendant a co-operative society appealed to the Federal
Court against a decision of the Court of Appeal in that a charge created was
void and unenforceable. This charge was in contravention of s 133 CA 1965
(Act 125). In deciding the case, the Court of Appeal disregarded the
decision of the Federal Court in Co-operative Central Bank v Feyen
Development [1995] 3 MLJ 313 (Feyen no 1). The plaintiff, a private

housing development company in the instant appeal tried to invite the

Federal Court to review its previous decisions in Feyen no 1 and overrule it.
The attempt was rejected by the learned judge Gopal Sri Ram JCA and he
stated:
When judges say that they are adhering to the principle of stare decisis they
are merely saying that they are applying the doctrine of precedent; that is
there is a previous decision on a similar issue which the court must apply to
the case before it.
To talk of adhering to previous decisions is, however, to oversimplify what

judges must actually do. They may encounter a number of problems when
endeavouring to apply the principle of stare decisis.
6.2 WHY ARE PRECEDENTS USEFUL

Precedents are used in areas other than the legal system. Decision making bodies
of all kinds may be faced with problems involving conflicting principles on which
a determination must be made.
In reaching a solution they will take into account previous decisions in relation to
similar problems and they will be aware of the example they are setting for the
future.
The usefulness of employing existing legal rules and categories in order to

resolve disputes which come before courts is explained by Professor Lon Fuller.
6.3 PROBLEMS WITH THE DOCTRINE OF

PRECIDENT
Although the doctrine of stare decisis is useful, it has disadvantages. Some
judicial decisions are unavoidably unjust. That may be because the case law the
judge is applying seems unjust.

Yet, if the terms of the law are clear, there is no way for a judge who conforms to
the doctrine of precedent, particularly one in a lower court, to avoid applying it.
A contrary argument is that the legislature has the duty to remedy such an
injustice by enacting remedial legislation.
On the other hand, most cases coming to appellate courts for decision allow
judges considerable scope for avoiding precedents which would result in
injustice or an otherwise inappropriate decision.
Some appellate courts are more adventurous than others more responsive to
suggestions from academics, as well as practicing lawyers and, in some
circumstances, are probably more prepared to accept that judicial creativity is
desirable.
The composition of the appeal court bench is all important in producing such an
attitude.
ACTIVITY 6.1
In Young v Bristol Aeroplane Co. Ltd, it was shown that relevant decision
or rule can be followed and considered although it was not binding.
Identify what are other rules of doctrine of precedent in common law
system?
6.4 THE IMPORTANT ELEMENTS (RATIO

DECIDENDI AND OBITER DICTA)
6.4.1 Ratio Decidendi
Another aspect of the doctrine of precedent affecting the weight to be accorded a
rule pronounced in a case is the distinction between those that are binding and
those that are not. Some of the legal rules articulated are binding, others are more
or less persuasive, and some may be of very little significance. Only the ratio
decidendi (literally 'reason for deciding') in a case can be binding. It may take a

variety of forms and there is no way of predicting with certainty the form which
will be accepted by a later court.
Among the reasons for this difficulty are the following:

the ratio (or rations if there is more than one) may be difficult to identify;
it may be possible to state the ratio at a higher or lower level of generality;
there may be no majority in favour of a particular ratio; and
it may be difficult to distinguish the ratio from the obiter dicta in the case.
(a) Identifying the Ratio
In many other cases the relevant legal principles have long been
determined, so that once the facts have been established the application of
the principles is straightforward whereby, the principle that one way to
create a contract is by agreement with consideration and the intention to
create legal relations is one such well-established rule. Neither of these sorts
of case will set a precedent to be followed in later cases (the one, because it
relates only to a set of facts and not to law, the other because the law is well
settled). Neither, therefore, has a ratio which will be employed in later
cases. It is in cases in which the facts do raise a legal issue that the judge's
decision becomes a ratio having a precedent value.
For example, have a look at the case Carlill v Carbolic Smoke Ball Co [1893]
1 QB 256. In that case, it was established that the company had advertised a
product known as a 'smoke ball' which was supposed to prevent those who
used it from catching influenza.

It promised compensation of 100 to anyone who used one correctly. The

advertisement went on to explain that the company had deposited 1000
with the Alliance Bank (on Regent Street in London) as a sign of its sincerity
on that matter. Any proper claimant could get their payment for that sum.
Relying on the advertisement, Mrs. Carlill bought the smokeball and used
as directed but yet caught the flu. She sought her 'reward' (as the company
described it in the advertisement).
When the company refused to pay she then sued, alleging a breach of
contract. The transaction had to be analysed by the court to see whether it
conformed to existing principles of contract law and whether, therefore, the
company's promise could be enforced.
Lindley L.J. stated that there was 'a string of authorities' confirming that
advertisements offering rewards for performance of a condition are
correctly characterized as 'offers' in the technical legal sense.
Two legal issues remained to be decided as no previous decision had dealt

with a similar set of facts. The two issues were:
1. whether there had been the necessary acceptance of the companys
offer; and
2. whether there had been consideration for its promise.
Lindley L.J.'s decision on each issue was as indicated in Figure 3.2.
Figure 6.2: Lindley L.J.'s decision
Each of the decisions above is a ratio of the case and is, therefore, an
authoritative statement of that principle of law for application in later,
similar, cases.

All three Lord Justices of Appeal gave judgements in favour of Mrs. Carlill
although slightly different reasoning, arguments and examples was given
by them.
(b) Level of Generality

The way in which the rule of law is stated by the judge may not, however,
be the rule accepted as the ratio by later courts. For any principle of law
from one case to be applicable in later cases which are not identical, it will
almost certainly have to be stated at a level of greater generality.
The rations from Carlill's case, given above, were stated at the lowest level
of generality. They can be restated at a higher level of generality in the
following manner:
in cases of unilateral offer, the offeree's performance of the condition
constitutes acceptance of the offer; and
in cases of unilateral offer, performance of the condition is good
consideration for the offeror's promise.
The restatement of these rules at a higher level of generality allows each of
them to encompass a wider range of cases and so to have greater value as a
precedent. This sort of restatement is necessary in order for the doctrine of
precedent to be useful.
If the statements are taken as the authoritative principles of Carlill's case

then it will not be necessary for judges in later, similar, cases to work out
the correct decision from first principles.
Had the rations remained fixed at the lowest level of generality, forever
confined to the particular facts of the case, they would have value only if a
later dispute arose on almost identical facts.
There does eventually come a point, with all principles of law, where they
can no longer be raised to a higher level of generality while at the same
time, remaining acceptable to society in general and to the courts in
particular. An illustration of such an extreme would be some of the
possibilities envisaged by Professor Fuller.

Over the years the courts will have to deal with cases which are on the very
edge of the scope of the principle and to decide whether or not the rule is
applicable.
Gradually, in this way, the parameters within which the rule is to operate
will become set and there will no longer be a need for people to resort to
litigation to determine the effect of that particular principle although it may
always be challenged.
(c) Ratio of Appellate Decisions

As a ratio decidendi is a proposition with which a majority of the court has
agreed, it may be necessary to determine, by a head count, what the
majority thought were the relevant principles of law applicable to the case.
However, even when each judge comes to the same conclusion it may be as
the result of following different arguments and applying different rules.
Alternatively, it might treat propositions contained in individual judgments

as having persuasive, but not binding force.
(d) Obiter Dictum

A judge will often find it necessary or convenient to state principle of law
which relate to hypothetical events rather than to the specific facts of the case.
Such statements sometimes serve to illustrate or clarify the principle which is
actually applied in the case (the ratio) but they are not themselves rations.

The distinction between ratio and obiter, therefore, can be stated thus;
pronouncements of legal principle necessary for the judge' decision on the
established facts of the case are the ratio or rations decidendi of the case,
whereas pronouncements of legal principle which are not strictly relevant to
the issue or issues will be obiter dicta only.
It must be appreciated, however, that not every statement of a rule of law

by a judge is necessarily ratio or obiter. Frequently, during the course of the
judgment the judge will restate and discuss rations from existing cases. It is
simply a recitation of the development of the relevant legal principles where
it is a foundation for the judge' reasoning, but those statements are neither
ratio nor obiter in the case before the court.
Sometimes it is very hard to distinguish between statements which are ratio

or obiter and those which are restatements of principles in earlier, slightly
different cases.
In the case of Carlill v Carbolic Smokeball, Bowen LJ gave the legal answer
to a set of facts which were not in issue in the case. They are thus obiter
dicta. The learned judge did this to assist him to clarify the answer to
Carlill's case.
The words of this judge could be used by a council (if ever such facts were
in issue in a court case) as persuasive precedent. On 1973, Carlills case was
applied in Peck v Lateu but was distinguished in AM Satterwaite & Co v
NZ Shipping Co (1972).
ACTIVITY 6.2
What is the major difference between obiter dictum and ratio decidendi?
Give supporting cases to your explanation.

6.4 THE RULES OF PRECEDENT
SELF-CHECK 6.2
Do you think that the decisions on the question of law by a judge in

inferior courts are binding to other courts? Why?
6.5.1 Judicial Decision Making

The real focus of attention of contemporary lawyers should be upon the extent of
legal creativity, its proper occasions and the techniques that may be used to
achieve and justify it. When a dispute between two or more parties comes before
it, a court must first attempt to establish what happened. In some trials the
relevant facts are determined by the presiding magistrate or judge.
In cases where a jury is used, though, the jury is responsible for making the
decisions on the facts, while the judge decides the law. Once the facts have been
established, it falls to the judge to apply the law to them in order to determine
which party should succeed.
According to the the President of the New South Wales Court of Appeal, Kirby J,
the learned judge put it clearly when he said:

Judges do have to make choices but some of them have more scope in that
endeavour than others. In considering this point, a distinction should be made
between judges at first instance (that is, judges in inferior courts, or single judges
in superior courts), and those in appellate courts.
While a judge in an inferior court, ought to be aware of the contemporary values

of society and what the average person would consider to be the appropriate
decision in that context, generally speaking, judges of first instance are obliged to
follow 'binding authority' in the form of decisions of a higher court in the same
hierarchy on a similar issue. If, despite a faithful adherence to the doctrine of
precedent, the judge's decision is considered by one or both of the parties to be
'wrong' in law, an appeal can be brought against it to a higher court. If the appeal
court decides that the existing rule, which was applied in the lower court, is
indeed wrong then it can change that rule either totally or in part.
The decisions of ultimate courts of appeal, however, cannot be changed by a

higher court. Such superior courts normally consider themselves free to overrule
their earlier decisions in the appropriate circumstances.
The notes above have raised several questions. They include in Figure 6.3.
Figure 6.3: Questions raised in overrule earlier decision
The questions will be further explained as follows.
(a) Is It Possible for the Facts of an Incident to be Objectively Determined?
A philosopher would probably answer that question in the negative while

the reasonable lay person might well say Yes. Fortunately, in many cases,
the question does not need to be argued for the parties may agree on a
statement of fact leaving only the legal issue(s) raised for determination by

the court. In other cases the jury, or the judge if no jury is empanelled, will
decide the facts.
It is the characterisation of the facts, in terms of the level of generality at

which they are stated, that can always be disputed and that leads to
argument about the articulation of the ratio which is based on them. An
example of that process is Professor Julius Stones demonstration of how the
facts in Donoghue v Stevenson [1932] AC 562 could be characterised at
several different levels of generality leading to different rations decidendi of
that case.
(b) How Does a First Instance Judge Decide What is the Legal Rule Binding the
Court Given the Established Facts of the Case?
As has already been explained, under the doctrine of stare decisis, if a

superior court in the same hierarchy has previously made a decision on the
question of law raised by the same or similar facts, the first instance judge is
bound to follow the earlier decision. However, there several techniques in
avoiding precedents that would otherwise be binding. If the judge decides
not to follow such a precedent:
he or she must expressly distinguish it (that is, explain how the earlier
case is different from the current one and therefore not applicable); or
the later decision will be deemed to have been made in ignorance of the
earlier one. Such a case is said to be decided per incuriam (literally
'through want of care') and incapable itself, of constituting a binding
authority for later cases.
Decisions are said to be per incuriam where they are given in ignorance or
forgetfulness' of:
a inconsistent legislative provision; or
a case which is binding on the court which made the decision: Morelle
Ltd Wakeling [1955] 2 QB 379 at 406.

(c) If the First Instance Judge Decides there is no Relevant Authority, What Rule
Should He or She Apply?
If, however, no earlier decision exists on, or analogous to, the matter before the
court, how does the judge find the appropriate rule? At one time, legal theorists
used to subscribe to what was called the 'declaratory theory of law'. Under that
theory, judges did not make law even if the issue before them had never been
dealt with before. Rather, by looking at existing common law and statute law
principles, they were said to have extracted a rule that was held always to have
existed but which had remained unused, waiting to be declared at the
appropriate moment. By the end of the eighteenth century, however,
philosophers such as Bentham and Austin had exposed that theory as a fiction
and had asserted that in some cases judges did make law when making their
decisions.
More recently, Lord Reid, a Law Lord, has described the declaratory theory
as a 'fairy tale'. He said this:
Now it seems that most, if not all, judges, other lawyers and thinkers accept
that judges do make law. Indeed, many people would agree that, in the
appropriate circumstances, it is essential that they do so.
(d) What Factors are Taken into Account by Appellate Courts in their Decision-
Making?
Everything stated above in relation to courts of first instance applies, with
some qualification, to appellate courts. Under the doctrine of stare decisis,
the Courts of Appeal and the High Court are bound by decisions of the
Federal Court. Federal Court, itself, although not strictly bound by its own
previous decisions, is reluctant to depart from them without cogent reasons.
As Sir Anthony Mason CJ has said:

In some decisions, judges openly admit that they have reached their
decisions on the basis of principle and policy in preference to the doctrine of
precedent. In other cases, a judge will say that he or she is adhering to the
doctrine of precedent but in fact, if the decision is analysed, it can be seen
that the reasoning has been heavily influenced by principle and policy. Such
an outcome is achieved by the clever use of techniques of interpretation and
distinguishing in avoiding precedents.
These three influences which are principle, policy and legal authority will need
further attention. The following are the matters that are needed to be
considered.
(i) Deciding cases according to principle

A case in which the court paid close attention to social developments,
while, at the same time, using principle by which to reach a decision,
is Gillick v West Norfolk AHA [1986] AC 112. In this case the issue
was whether a doctor could lawfully prescribe contraception for a girl
under sixteen without the consent of her parents.
(ii) Deciding cases according to policy

An excellent example of the decision being reached on policy grounds
is an Australian case of Mabo v Queensland (No 2) (1992) 175 CLR 1
Bernnan J said (at 42):

(iii) Deciding cases according to legal authority

However, even a straightforward application of the doctrine by judges
who are determined not to be influenced by principle or policy may
result in two or more of them coming to different decisions on the same
set of facts. That is because of the difficulties in interpretation both of
the facts and of the legal authority. Choices are always there to be
made. And even supposing that wide agreement can be reached on
what constitutes the ratio decidendi of a theoretically binding decision,
a court may, nevertheless, be able to avoid the precedent in some way.
6.5.2 How to Avoid Precedents

It is not uncommon where; there are occasions where a judge is convinced that
the rule in an earlier decision should not be applied to the case before the court
even though prima facie, the precedent is binding or highly persuasive. In these
circumstances, the judge should expressly avoid the precedent and explain why it
is not being followed. If a precedent which is prima facie binding is simply
ignored, the decision may be considered to be per incuriam.
There are many ways of arguing that a precedent should not be followed given
the flexibility of language and the complexities inherent in the concept of ratio
decidendi. Some of the most common methods used to avoid precedent are to
hold that are indicated in Figure 6.4.
Figure 6.4: The common methods used to avoid precedent

These methods are further explained below.
(a) Precedent was Wrongly Decided
This argument can generally be used only in superior courts, as a lower

court would normally regard itself as bound to follow the decision of a court
above it in the hierarchy, even if the lower court was of the opinion that the
precedent was incorrect in law.
In relation to such decisions it is given in ignorance or forgetfulness of

binding authority. For example in the case of MNI v Lim Tiok [1997] 2 MLJ,
the contention was whether the Supreme Courts decision in Tan Chik bin
Ibrahim v Safety Line and General Insurance [1987] 1 MLJ 217 should be
reviewed to determine whether it should be overruled because it was
wrongly decided. The Federal Court reviewed Tan Chik's case and decided
it was wrongly decided and should not be followed.
(b) Changed Social Conditions

Precedents may retain their authority no matter how old they are.
Nevertheless, it is well recognised that the law gradually adapts itself to
changing social conditions and that very ancient precedents are often
inapplicable to modern circumstances. For this reason they are cited with
comparative infrequency. For example a court may have to decide whether
there was such a crime as rape in marriage. For over two hundred years, the
common law rule had been that by reason of marriage, there was an
irrevocable consent to sexual intercourse on the part of a spouse. A husband,
therefore, could never be found guilty of raping his wife. The principle,
which had been authoritatively expounded in 1736 in an Australian case, had
apparently been accepted by another Australian case in 1933.

(c) Statement of Law is too Wide

It is often possible to argue that the statement of a rule of law in an earlier
case should be construed narrowly and confined to the particular facts of
that case.
(d) Statement is Obiter Dictum

Statements made by judges are often clearly obiter dictum. The statement
may be preceded by words such as, 'although a consideration of this
question is not necessary for the decision in this case'; or it may be arguable
that the statement is not strictly necessary to the conclusion arrived at by
the judge. This area of uncertainty may be exploited to avoid an earlier
precedent.
(e) Distinguishing an Earlier Case on its Facts

When this method of avoiding precedents is used, it is argued that the facts
of an earlier case are so different from the ones under consideration that the
conclusion of law arrived at in the earlier case is not applicable. This
technique can be illustrated by the following example:
In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, the English Court of
Appeal had to decide whether the plaintiff was bound by a clause in a
notice affixed to a pillar in a car park, which purported to exempt the car
park company from liability for injury to customers. It was argued that the
case was the same as a series of older, so called ticket cases, in which
booking clerks working for railway or steamship companies issued tickets
to customers.
Under the old cases, the issue of the ticket was regarded as an offer by the
company. When a customer took a ticket and kept it without objection the
offer was deemed to have been accepted. The customers were then bound
by the conditions printed on the tickets. The theory on which the cases were
based was that customers could hand the tickets back if they did not like the
conditions printed on them and thus refuse to enter into a contract. In the
Thornton case, however, the court distinguished those earlier cases on their
facts.

ACTIVITY 6.3
It is stated that changed social condition is one method to avoid precedent.
Given an example a crime rape in marriage where two hundred years ago,
common law gave a precedent that a husband could never be found guilty
of raping his wife. However, social condition and value have changed and
this principle is no longer acceptable. By referring to any law books, find
any principles that are unacceptable in today's society condition.
EXERCISE 6.1
Give the meaning of ratio decidendi and obiter dicta. Is there any
distinction between these two elements?
6.6 PRINCIPALS OF JUDICIAL PRECEDENT

In considering the doctrine of precedent, the general principles in Figure 6.5
should be borne in mind:
Figure 6.5: The general principle in Doctrine of Precedent
Some of the examples given to illustrate the various techniques could just as
easily be used with one or more of the other techniques. The appropriateness of a
particular case as an example depends on an individual's interpretation of that

case. Suggestions made may help readers to think about legal decisions, even
relatively old ones, both critically and inquiringly. Discussion should be focused
on the limits and justifications of the practice.
Judges in the superior courts need to keep in mind that they are not elected, as
the legislators in parliament are, and that they do not have the resources available
to law reform commissions or parliamentary committees. As long as they
recognize those limitations, however, the creative role that they have increasingly
been undertaking would seem to be a necessary one.
If courts were to go too far, either by usurping parliament's function in a major

way or by making a law with unforeseen but far reaching bad consequences, it is
always open to the parliament to change it. Such a process of law creation,
however, would be inefficient and would also be damaging to the reputation of
the courts. The task of the current generation of judges, academic lawyers and
legal practitioners is to help discover that boundary.
When faced with a case, Judges will have to make an informed decision.
However, some judges have more choices than the others.
A first instance judge is obliged to follow the binding authority of a higher
court's decision in the same hierarchy of a similar issue.
However, there are in appropriate circumstances whereby the lower court
judge may depart from the binding authority.

Topic X Statutory
7 Interpretation
LEARNING OUTCOMES
1. Explain ten ways to statutory interpretation;
2. Explore the four rules of statutory interpretation;
3. Apply the common law approaches to statutory interpretation; and
4. Assess the statutory approaches to statutory interpretation.
X INTRODUCTION
Legislations are statements of law are fixed in verbal form and therefore are less
problematic than interpretation of case law. However, there are complexity and
ambiguity in many legislation. This results in a need for interpretation of
legislation. The courts apply rules and principles that will assist them in the
interpretation of statutes.
7.1 STATUTORY INTERPRETATION
SELF-CHECK 7.1
Can you think of any ways on how Judges interpret statutes?
(a) Rules of Statutory Interpretation

To aid themselves in interpreting statutes, the judges have developed a
number of rules. While they are described as rules and are part of the
common law, most of them are presumptions or guidelines, rather than

TOPIC 7 STATUTORY INTERPRETATION W 139
inflexible directions. These rules are supplemented by provisions in the

Interpretation Acts. These are shown in Figure 7.1.
Figure 7.1: Rules of statutory interpretation
(i) The Literal Rule

It lies down that, words must be given their literal meaning. Other
expressions besides literal are sometimes used, such as natural,
ordinary and grammatical, but the effect is the same. This rule is based
on the assumption that Parliament's intention is fully contained in the
words of the statute.
If a statute so interpreted is clear and produces hardship, the remedy
is a new statute, it is not the duty of a judge to fill in the gaps.
Words are read with ordinary, literal meaning and applied to facts.
look at surrounding words,
look at intent of words; and
look at Act as a whole.
Benefits of the literal rule are shown in Figure 7.2.
Figure 7.2: Benefits of Literal rule

140 X TOPIC 7 STATUTORY INTERPRETATION
The problem with the literal rule is that it assumes that the word or
phrase read in context has only one instead of several meanings.
Case: Public Prosecutor v Chin Kim Foo

Facts: On 14th July and 18th July 1988, sound recordings of two titles
were first published in Malaysia. The copyrights of both were
infringed on 19th July 1988.The defendant argued that the copyright
only subsisted from 1st January 1989. This was based on section 19 of
the Copyright Act 1987 (Act 332 which states:
'Copyright in a sound recording shall subsist until fifty years from the
beginning of the calendar year next following the year in which the
recording was first published.
Held: In the Sessions court, the judge accepted the submission. The
learned judge held that there was no copyright until 1st January, this
was based on the literal reading of S19. However, she acknowledged
that even though the interpretation led to absurdity, the clear words of
S19 did not allow her to reach any other conclusion. On appeal, her
decision was upheld.
However, it is worth noting an Australian decision on this Literal
Rule.
(ii) The Golden Rule

A classic statement of the golden rule was made by Lord Wensleydale,

with whose name it is often associated:
"The grammatical and ordinary sense of the words is to be adhered to,
unless that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as
to avoid the absurdity and inconsistency, but no further."
It involves a modification of the words of an Act, where their ordinary

meaning creates an absurdity.
Courts would not follow literal meaning if words dont embody

legislative meaning or lead to absurdity.
Ordinary senses of words need to be adhered to; unless they lead to

absurdity or inconsistency with rest of instrument.
However this rule has a problem where it confines courts to ordinary

grammatical sense unless this produces absurdity. The case of Cooper
Brookes signalled shift away from narrow literal rule. This limitation
on the literalist approach was known as the 'golden rule'.

(iii) The Mischief Rule

Also known as the Rule in Heydon's Case 1854, lies down that the court
must look at the Act to see what 'mischief' or defect in the common law
the Act was passed to prevent.
Four questions should be considered are shown in Figure 7.3.
Figure 7.3: Four questions need to be considered by the court
In short, the mischief rule requires the judge to look at the problem
with which the statute is dealing and to interpret the statute as the
solution to the problem.
Heydon's case (1854) 765 ER 637

The 'mischief rule' was set out which looked at the purpose of the Act
where the literal approach produced an ambiguity or inconsistency.

(iv) The Purposive Approach

It is the approach which is favoured by the courts. It determines
purpose of Parliament in passing Act and adopts interpretation
consistent with that purpose. Reforms have made a significant
contribution to favouratism by courts of this approach.
This was being criticised in:
Purposive approach can only be applied when literal approach leads

to inconsistency or ambiguity. It is endorsed by courts but other
approaches can be used depending on words. Golden rule is also
limited to absurdity and inconsistency.

(b) Statutory Approaches to Interpretation

Three statutes on statutory interpretation:
(i) In 1989, three previous statutes that were used in the interpretation of
federal laws and the state law in Peninsular Malaysia, was
consolidated into one statute, namely, Interpretation Act 1948 and
1967 (Act 388) (Consolidated and Revised 1989).
(ii) Interpretation and General Clauses Enactment of Sabah (no 34 of
1963), applicable to all Sabah enactments in force at its commencement
and to all subsequent enactments.
(iii) Interpretation Ordinance of Sarawak 1953 (Chap. 1) applicable to all
ordinance in force at its commencement and all subsequent
ordinances, unless otherwise indicated.
It must be noted, that it is imperative to know the common law rules in

order to understand the provision of the above statutes.
Do the statutory approaches differ from the purposive approach at common

law? The answer has been given in the Australian case of Mills v. Meeking
(1990) 169 CLR 214. In the HC of Aust.Per Dawson J at 235:

(c) Use of Extrinsic Materials

In interpreting a particular statute, the use of extrinsic materials such as:
Hansard (Parliamentary debates),
reports,
treaties,
documents and
journals.
These are all allowed. Material outside the Act may be brought in to
confirm ordinary meaning of provision even when provision is clear on the
face. It can assist in ascertaining meaning in the following situations:
(i) Confirmation of an ordinary meaning conveyed by taking into account

purpose or object of the Act; or
(ii) * provision ambiguous or/ and

* ordinary meaning leads to absurdity or unreasonability.
It does not permit recourse to Second Reading speech for departing from
ordinary meaning unless the meaning is ambiguous or leads to absurd result
where, Second Reading has greater weight and relevance than other speeches.
Court must give effect to will of parliament and cannot substitute words of
Minister.
(d) Context as an Aid to Interpretation (The Act Itself)

(i) Statute to be read as a whole.
(ii) Which words are parts of the statute?
Purpose clause is important to analyse in construction. Table 7.1 shows the

parts of the Act:
PART FACT
Long Titles It is part of Act- may be used to determine purpose
Preamble It is part of Act- may be used to determine purpose
Headings to Parts and
It is part of Act- may be used to determine purpose
Divisions
Headings to Sections It is not part of Act- Extrinsic material
Schedule It is a part of Act
Punctuation It is a part of Act- Extrinsic material

(e) Definitions in a Statute
Definitions in a Statute are as listed in Figure 7.4.
Figure 7.4: Definitions in a Statue
Whenever the parliament desires to expand ordinary meaning, it includes

definition section to enlarge meaning.
(f) Why is Statutory Interpretation Important?

There are innumerable statements in judicial decisions that the chief duty of
a court, faced with a problem of statutory interpretation is to discover the
intention of Parliament.

(i) "Legislative purpose"

Those who have objected to the phrase 'legislative intention' have
tended to prefer the seemingly more objective phrase 'legislative
purpose'. This phrase has been argued to avoid most of the difficulties
associated with the word intention.
Statements that the duty of the judges is to find and express the
purpose of the statute are increasingly frequent, especially in the
House of Lords and the United Kingdom Court of Appeal.
(ii) Effect of what Parliament has said/or what it meant to say?

The school of thought which insists on focusing prime attention on the
words used regardless of context has a fundamental point of great
importance. If the words and meaning of the statute are clear, then the
facts that there is strong evidence to suggest that some other meaning
was intended cannot prevail. The intellectual integrity of the process
demands that, there will be some limitation to the process of
'interpretation'.
(g) Judges Interpretation of Statutes

This part of the lecture discusses the rules for interpreting statutes. As the
majority of the jurisdictions have enacted the object and purpose of the rule,
this will be the rule followed in the remainder of the lecture.
Object and Purpose of the Act
These provisions direct a court towards an interpretation which promotes the

original object and purpose of the Act, in preference to one which would not
promote them.
Interpretation Acts
In Malaysia, the provision directing a court to the objects and purposes of an
Act is in the three statutes as mentioned above. These provisions lay down
the fundamental rule of interpretation.
Sources of Interpretation
The classifications are as shown in Figure 7.5.

Figure 7.5: Sources of interpretation
(i) Statement of object and purpose

There is no other direct or official than a statement of object or purpose
in the Act itself.
(ii) Extrinsic material

This refers to matters that are quite external to the statute, such as listed
in Figure 7.6.
Figure 7.6: Extrinsic material

It can also extend to writing subjects relevant to legislative policy such as;
economics;
behavioural sciences;
politics; and
public administration.
This material is often referred to as external aids or extrinsic material as

opposed with aids to interpretation within the statute itself, ie, internal aids.
It is also sometimes referred to as "travaux preparatoires" a French term
meaning preparatory work.
(iii) Traditional rules of statutory interpretation
These are the literal rule, the golden rule and the mischief rule, which
have been discussed previously.
(iv) Statute must be read as a whole
A basic rule is that a statute must be construed as a whole. The
principle that a statute must be construed as a whole is also expressed
in the maxim "noscitur a sociis". This means something is known by
its associates.
(v) Rules about words
They are the following rules:
Prima facie, words are construed in their popular sense which can
be ascertained from a standard dictionary. In this connection, the
practice is giving the words their current meaning and scope
unless the original meaning is different in kind from the present
one, in which case the original meaning is to be used.
Words are to be construed as used precisely and exactly, not
loosely or inexactly.
It is presumed that words are used consistently and therefore the
same words in a statute bear the same meaning.
(vi) Provisions to be Effective and Valid
Courts should construe provisions in order for them to be effective,
meaningful and constitutionally valid. This is expressed in the maxim:
ut res magis valeat quam pereat (that it may be operative rather
than inoperative). One effect of this maxim is that statutes are
construed so that every word and phrase is meaningful.
Consequently, one does not construe a word or phrase in a way that
renders another word or phrase meaningless or redundant.

(vii) Internal Aids

This refers to some of the parts of an Act. The general principle has been
stated that an Act must be read as a whole so that any scheme or framework
evinced can be used. In this way, the general plan or layout of an Act is
used for interpretation. At common law, the principles and practice in
relation to using specific parts of an Act are as follows:
Courts are ready to look specifically at the long title, preamble, parts,
divisions and headings to ascertain the purpose or object of an Act or
the meaning of a specific provision. There is some doubt when the short
title can be invoked.
Schedules were once disregarded, but the trend now is to refer to them
if they can be of any assistance.
Marginal notes and section headings can be used to ascertain the
purposes of a section, but they cannot control its meaning. The difficulty
is that marginal notes and section headings are not proper parts of an
Act. They are merely the draftsmans summaries of the sections of an
Act and may not have been debated in Parliament. Also, for a number of
reasons, they may not be reliable.
Similarly, punctuation is little used, as this is considered more the work
of the printer or draftsman than of Parliament.
(h) Presumptions for Specific Situations

Rules of interpretation are presumptions which apply to specific situations.
Although these and other "rules" are described as maxims or presumptions,
for the most part they state a favoured, likely, plausible or possible view of
Parliaments intentions. They are:
(i) "Noscitur a sociis" (a word is known by its associates)

This means, literally, that something is known by its associates. The
most obvious example of its use is to restrict the scope of words by
refering to other words in their immediate context.

(ii) Ejusdem (or eiusdem) generis (class rule)

Literally of the same kind as this is directed at the situation where an
Act lists a number of specific items then adds a more general one. One
possible view of this is that the legislature intends that the general
item should be read to include only those of the same kind or genus as
the specific ones. DC Pearce in Statutory Interpretation in Australia
gives as an example: If a ferry is allowed to carry horses, cows, sheep
and other animals, it may be argued that other animals should be read
down to include only domestic farm animals and eg, not tigers. It is
this construction which results in the ejusdem generis rule. Essential
to its operation is that there is a clear intention that the items are to be
of the same genus or class. But if this intention is lacking, ejusdem
generis will not apply, since like all presumptions, it reflects only one
possible view of Parliaments intention.

(iii) "Expressio unius alterius est" (the express mention of one thing is the
exclusion of another).
This means an express reference to one thing is an exclusion of others.
'Expressio unius' operates in situations where some of the things
which could be implied are, in fact, spelt out, for example, a statute
has a section which specifically exempts employees, but makes no
mention of agents. In deciding what the position of agents is the
expression unius may apply, an express reference has been made to
employees, but no mention made of agents. If 'expression unius' did
apply, agents would not be included within the exemption.
As stated above, it operates in situations where some of the things

which could be implied are, in fact, spelt out. Specification of these
matters raises the presumption that the legislature decided not to rely
on implication, but addressed its mind to all of the possibilities.
Therefore, it spelt out those that it wanted to be covered, and those it
did not mention it meant to exclude.
(iv) Generalisa specialibus non derogant (general measures do not

derogate from special measures)
Meaning general things do not detract from special ones. It says that
one should not, or should reluctantly infer an implied repeal of an
earlier specific statute by a later one. Behind this is the assumption
that, in dealing with a topic generally, the legislature must not
necessarily be taken to have meant to deal with a special aspect of it,
which was already covered by the statute.

(v) "ut res magis valeat quam pereat" (it is better for a thing to have effect
than to be made void).
words are presumed to be used with consistent meaning in an Act;

and
words in the Act are presumed not to be surplus. Shall and May
- Do the words confer a discretion or impose an obligation?
shall or must indicate obligation for example, if there is a failure
to comply with an obligation then there is a problem (because
parliament regards the provision to be complied with).
may indicates discretion.
This has effect notwithstanding any contrary rule of construction.
(i) Inconsistent statutes
leges posteriores priores contrarias abrogant (later laws
abrogate prior contrary laws)

(ii) Common law value presumptions in statutory interpretation

What is a presumption?
Variable strength of presumptions and rationale for

presumptions are:
(i) Presumption of that statutory provision does not apply to
the Crown (Sovereign) unless there is a clear intention to
the contrary. It is assumed that basic rights will not be
interfered with.
(ii) Legislation is presumed not to alter fundamental common
law principles.
(iii) Presumption of natural justice (Right to a hearing).
(iv) Substantive legislation is presumed not to operate
retrospectively. Some legislation contains express
provisions of retrospective operation. All parliaments have
the power to enact retrospective legislation.
Consider whether the statute is of a substantial or procedural nature:

if substantive then presumed not to operate retrospectively; and
a mixture of substantive and procedural becomes substantive

This presumption is only rebutted if there is a clear intention:

if procedural there is no presumption against retrospectivity and
statute can apply retrospectively or prospectively; and
a procedural statute may also effect existing rights.
Exceptions to the presumption which is past history as indication of present

fitness:
Procedural statutes:
(vi) Statutory Offences and Mens Rea

Statutory offences are presumed to require mens rea :

The presumption may be rebutted:
For strict liability offences there is a defence of honest and

reasonable mistake of fact:
Some offences are of absolute liability:
Case: ACase Allen v. United Carpet Mills Pty. Ltd. [1989] VR 323
Facts: pollution of creek caused by rubber latex from first accuseds
factory leaking from second accused's truck
Held:- first accused liable under deeming provision of statute which
required:
The environment was polluted.
Pollution was a result of discharge.
Premises used for commercial/business purposes - burden of
proof then shifts to first accused to prove cause of pollution
unrelated to commercial activities.
(vii) Strict construction of penal statutes:

Case: R. v. Smith [1974] 2 NSWLR 586 Held: The word 'offensive
should be construed strictly to confine the criminal scope of that word.
(viii) Beneficial interpretation of remedial legislation.
(ix) Presumption of conformity with international obligations.

ACTIVITY 7.1
Evaluate your understanding by answering the following simple

questions:
1. What are the rules supplemented by provision in the Interpretation

Act?
2. By referring to the case of Mills v Meeking (1990), is the statutory
approach differs from the purpose approach at common law?
3. What is an extrinsic material?
4. What are the rules of language used in the interpretation of statute?
5. List down the rules of interpretation which are presumption.
EXERCISE 7.1
Describe the rules of statutory interpretation.
Malaysia adopts the statutory provisions which lays down the general
approach to be taken to the interpretation of legislation.
However, in order to understand these provisions, it is important to know
about the common law approaches to interpretation which are used to assist
the courts.

158 X UNIT 1 BASICS OF MANAGEMENT ACCOUNTING AND COST POOLING SYSTEM
TUTORIAL QUESTIONS
Discuss the common law and civil law that constitutes the Western Legal
Tradition.
1. The classification of law in Malaysia can be divided into written and

unwritten law.
Discuss.
2. A statute stated It shall be an offence for a common prostitute to loiter or

solicit in a street or public place for the purpose of prostitution.
Prostitutes began trying to attract customers by signaling to the men from

balconies or from windows. Some would indicate the price by raising three
fingers. On one occasion, the prostitutes received a counter offer of two
raised fingers!
Explain whether an offence has been committed under the statute by using the
different methods of interpretation. Does the choice of different methods made a
difference made a difference to outcome?
3. What is the difference between a binding precedent and a presuasive

precedent?
4. What is the doctrine of precedent?

ANSWERS W 159
Answers
TOPIC 1: NATURE OF LAW
Exercise 1.1
Morality is a set of complex concepts and philosophical beliefs by which an
individual determines whether his or her actions are right or wrong. The moral
value is usually taught by ones religion. It is the rule that the statutes preserve
moral value but the moral value cannot always be subject to law. It is because
meaningful moral action requires reflection, choice and even failure in order for
people to learn and grow. However, a society would be tyranny if every good
deed or noble act is mandated by law. If one principle becomes law and the
person fails to do it then it will be considered as breach the law.
TOPIC 2: CLASSIFICATION OF LAW
Exercise 1.2
Not all local custom will be recognised as source of law. There are certain
requirements to be satisfied in order for a local custom to be set of legal rules or
be recognised as source of law. They are:
(i) it must have existed from time immemorial that is 1189;

(ii) it must have been exercised continuously within that period;
(iii) it must have been exercised peacefully and without any opposition;
(iv) it must have been felt to be obligatory;
(v) it must have been consistent with other customs; and
(vi) it must be reasonable.

160 X ANSWERS
TOPIC 3: EVALUATION OF SOURCES OF MALAYSIAN

LAW
Exercise 3.1
The major sources of Malaysian law are written law, unwritten law and Islamic
law.
(i) Written law

It is the law which has been enacted by Parliament or the State Assemblies. It
can be either statutes (that is an Act, Ordinance or Enactment) or delegated
or subordinate legislation. Subordinate or delegated legislation is the law
which is enacted by certain group or body which has been appointed by
parliament. The example of written law is Federal Constitution, State
Constitution, Companies Act, Contracts Act and Hire purchase Act
(ii) Unwritten law

Law that is not written. This does not means that the law is not written
anywhere but the law which is not enacted by Parliament or the State
Assemblies and not found in both Federal and State Constitution. The
sources of unwritten law are:
Principles of English law applicable to local circumstances that is rule of
equity and common law.
Judicial decisions of courts
Customs of local inhabitants which have been accepted as law by
courts.
(iii) Islamic law

Islamic law is only applicable to Muslim population and administered by a
separate system of courts. The recognition of Islamic law is established in
Article 3 of Federal Constitution which states that Islam is the religion of
federation. However, the other person may practice their religion in peace
and harmony in any part of Malaysia.

ANSWERS W 161
TOPIC 4: LEGISLATION
Exercise 4.1
1. The doctrine of separation of powers means that the Federal Constitution
confers the legislative, executive and judicial powers of the Federal
Government on three different bodies. They are the Parliament, the
Executive and the Judicature.
Legislative power that is the power to make law is given to the parliament
which consists of two houses namely House of Representative (Dewan
Rakyat) and House of Senate (Dewan Negara).
The executive power is the power to administer laws and carry out the
business of government through such bodies for example government
departments, statutory authorities and defense forces.
Judicial power is the power exercised by courts in determining the cases

which were brought to them.
2. An Act of Parliament starts its life as a bill. It will not become an Act until it
goes through a number of stages introduced into either one of the house of
parliament and goes through the following stages:
(i) Initiation
This stage is where the minister responsible for a bill gives notice of
motion that is a day before he or she intends to introduce a particular
bill.
(ii) First reading

When the motion is agreed by the originating house (either Dewan
Negara or Dewan Rakyat), the bill is formally introduced and read a
first time. Usually there is no debate on the first reading.
(iii) Second reading

This stage is where there is debate between members of the house and
the minister on the principle or policy of the bill.
(iv) Committee stage

After the second reading, each house will considers the bill in detail.
There will be debate and dialogue about the bill.

162 X ANSWERS
(v) Third reading

This stage is where the bill is read for the third time in order to get the
final agreement.
The bill then proceeds to other house of parliament and goes through the
same stages before going to Yang Di-pertuan Agong for Royal assent.
TOPIC 5: JUDICIARY
Exercise 5.1
The hierarchy of courts in Malaysia consists of two types that is superior courts
and lower courts. As regards to the superior courts it consists of Federal Court,
Court of Appeal and High Courts. The lower courts in Peninsular Malaysia are
Sessions Court, Magistrates Court, Juvenile Court and Penghulu Court. For East
Malaysia, the lower court consists of Native Court, Sessions Court and
Magistrates Court.
The functions of each court are as follows:
(i) Federal Court

The jurisdictions can be divided into four types that are appellate
jurisdiction, original jurisdiction, referral jurisdiction and advisory
jurisdiction.
Appellate jurisdiction
The court has jurisdiction to hear both civil and criminal appeal from
High Courts
Original jurisdiction
The original jurisdiction of Federal Court is to determine the validity of
law enacted by Parliament or State Assemblies and to decide disputes
any other question between the States and Federation.
Referral jurisdiction
The court has power to determine constitutional questions that has
arisen in High Court and the High Court refers to the Federal Court for
decision.
Advisory jurisdiction
The court can give its opinion on any question which has arisen and
which has been referred to it by Yang Di pertuan Agong.

ANSWERS W 163
(ii) Court of Appeal

The Court of Appeal has the jurisdiction to hear both criminal and civil
appeals against any decision made by High Courts whether made in the
exercise of its original or appellate jurisdiction.
(iii) High Court

The High Court (both High Court of Malaya and High Court of Sabah and
Sarawak) are as follows:
Original jurisdiction
The High Court has unlimited jurisdiction in both civil and criminal
cases. However, any matter which cannot be determined in subordinate
courts is heard in High Court.
Appellate jurisdiction
The court hears civil and criminal appeals from Magistrates and
Sessions Court.
Revisionary jurisdiction
The court has the power to refer any points of law arising in the appeal
from the decision of the Court of Appeal if in its opinion it is of public
interests.
Supervisory jurisdiction
The court has supervisory and revisionary power over all subordinate
courts.
(iv) Sessions Court

Civil jurisdiction
The court has power to try all actions and suit where the amount
disputed or value of the subject matter does not exceed RM250,000.00.
Criminal jurisdiction
The jurisdiction extends to all offences except offences punishable with
death sentence.
(v) Magistrates Court

Civil jurisdiction
The Magistrates have the jurisdiction to try all actions where the
amount or value of subject matter does not exceed RM25,000.00. The
Magistrates may exercise a higher amount if both parties agree in
writing.

164 X ANSWERS
Criminal jurisdiction
The Magistrates have the jurisdiction to try all types of offences which
has a maximum term of punishment not exceeding ten years
imprisonment, or with a fine.
(vi) Native Court

This court has jurisdiction to decide matters relating to native and customs.
The parties to the proceedings must be natives.
(vii) Juvenile Court

The court has jurisdictions to try all offences committed by offender (young
person) except those punishable with death.
TOPIC 6: JUDICIAL PRECEDENT
Exercise 6.1
Literally, ratio decidendi can be defined as reason for deciding. It is the principle
in which the judge relied on in giving decision of each case. Obiter dicta is the
principle of law which relate to hypothetical events rather than to the specific
facts of the case.
The distinction between these two elements is that the ratio decidendi of the case
is the pronouncement of legal principle necessary for the judge's decision on the
established facts of the case and obiter dicta is the pronouncements of legal
principle which are not strictly relevant to the issue or issues of the case.
TOPIC 7: STATUTORY INTERPRETATION
Exercise 7.1
There are four rules of statutory interpretation. They are:
(i) The literal rule

This rule means that the words in statutes must be given their literal
meaning. This rule is based on the assumption that parliaments intention is
fully contained in the words of statutes.

ANSWERS W 165
(ii) The golden rule

This rule involves a modification of the words of an Act, where their
ordinary meaning creates an absurdity.
(iii) The mischief rule

This rule requires the court to look at the Act and to see what the defect in
common law the Act was passed to prevent. The judge has to look at the
problem with which the statute is dealing and to interpret the statute as the
solution to the problem.
(iv) The purposive approach

The rule requires the court to determine the purpose of parliament in
passing an Act and adopts interpretation consistent with that purpose.

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BDAU2103

Copyright Open University Malaysia (OUM)

Module Writer: Chitra Latha Ramalingam

Moderator: Rozanah Abd. Rahman

Developed by: Centre for Instructional Design and Technology

Printed by: Meteor Doc Sdn Bhd

First Edition, May 2008

Copyright Open University Malaysia (OUM)

Topic 1 Nature of Law

Topic 2 Classification of Law 18

Topic 3 Evaluation of Sources of Malaysian Law 50

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Topic 6 Judicial Precedent 117

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Topic 7 Statutory Interpretation 138

Tutorial Questions 158

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COURSE GUIDE DESCRIPTION

As an open and distance learner, you should be acquainted with learning

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Table 1: Estimation of Time Accumulation of Study Hours

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TEXT ARRANGEMENT GUIDE

Self-Check: This component of the module is inserted at strategic locations

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References: References is where a list of relevant and useful textbooks, journals,

Mid Term 40%

Final Examination 60%

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Hickling R. H. (1991). Essays on Malaysian Law, KL, Pelanduk.

Hickling R. H. (2001). Malaysian Law (An Introduction to the Concept of Law in

Wu Min Aun (1998). Public Law in Contemporary Malaysia, Malaysian Law

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Copyright Open University Malaysia (OUM)

1.1 NATURE OF LAW

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"Wherever Law ends, Tyranny begins." (Second Treatise of Government, sec.

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on a precise definition, two common themes identified in the definitions

While it is difficult to provide a precise definition of 'law', a useful general

1.2 DISTINCTION BETWEEN RULES AND LAW

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In determining whether a 'rule' is 'law', it is necessary to consider two major

Figure 1.1: Two major questions is determining 'rule' is 'law'

1.3 THE NEED FOR LAWS

1.4 RELATIONSHIP BETWEEN 'JUSTICE' AND

Figure 1.2: Different contexts of term 'justice'

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No. Statement Law Rules

1.5 CUSTOM, MORALITY AND LAW

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Figure 13: The requirements for local custom to

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(c) standard adjudication procedures established to avoid violence;

One of the fundamental legal precepts of modern civilisation is that no person

1.6 LAW, THE STATE AND THE

government. A legal system administered almost entirely on the basis of a

A constitution is a settled arrangement by which a country's parts or elements,

In the case of a written Constitution, the name is sometimes applied to the