Sources of Law in Malacca Sultanate

LW224
PART A (6 MARKS)
Describe various sources of law during the Malacca Sultanate.
(LAW 431 Section A Q 2: OCT2009 6 marks)
Sources of law refer to the places where the law can be found and the origin where
the law gets its authority. There are two types of source of law, which are the written
and unwritten law. During the Malacca Sultanate, there was already a system of law
and order established by the ruler of that time in order to protect the interest of traders
and govern different group of people.
For the written law, there were two legal digests in the Malacca Sultanate, which
are Hukum Kanun Melaka and Undang-Undang laut Melaka. Hukum Kanun Melaka
covered a wide range of constitutional, civil and criminal matters. There was no clear
demarcation between them or between the secular or religious. The Undang-Undang
Laut Melaka, as its name indicates, covered largely maritime matters.
For the unwritten law, the source of law during Malacca Sultanate before coming
of Islam is Malay adat law, specifically adat temenggung. Adat temenggung is based
on patrilineal tradition and since it comes from Palembang, it received influence of
Hindu tradition and its customary law. The adat temenggung was the law of the sultan
and, therefore, autocratic in nature. At the time of its founding by Parameswara around
1400, Malay adat law incorporating Hindu-Buddhist elements was originally applied.
The coming of Islam saw the beginning of attempts to introduce Syariah law and to
modify Malay adat law to accord with Islam. The process of Islamization can be seen
through the use of various sources such as Al Quran, as sunnah, qiyas and ijmak.
1 MALAYSIAN LEGAL SYSTEM [LAW434]

LW224
Describe the administrative structure during the reign of the Malacca Sultanate.
(LAW 431 Section A Q 5: OCT2006 6 marks)
Malacca is an important port therefore there is a need for a law and order and a
systematic administrative structure to govern the administrative matters in Malacca.
By 1500, the Malacca Sultanate had administrative structure that was to be the model
for the later Malay states. At the apex of its administrative reign is the Sultan or the
Ruler. The sultan has absolute power and practices absolute monarchy. Sultan is the
head of the state and head of the government.
Below the Sultan is Bendahara, who combined the offices of the modern prime
ministers, chief justice and commander-in-chief of the army. Bendahara, acted as the
advisor to the Sultan, will assist the Sultan in the administration matters and also lead
other minister. Next in prominence was the temenggung, who was the chief of police
and chief magistrate, who was responsible in apprehending criminals, maintaining
prisons and keeping the peace.
Below him was the laksamana, the admiral of fleet. A Laksamas authority is
paramount. He was the head of the navy and also chief emissary of the Sultan. He
ensured that the Malacca Straits was safe and enforced the Undang-Undang Laut
Melaka . Malaccas most prominent Laksamana was the legendary Hang Tuah.
Below the laksamana was the syahbandar or the harbor masters. There were four
shahbandar to attend to four main group of traders which are from China and Far East;
from Java and the Malay Archipelago; from west India; and from southeast India.

LW224
Describe the legal system and the sources of law that were applied during the
Malacca Sultanate.
(LAW 431 Section A Q 1: APR2005 5 marks)
Malacca Sultanate applied the mixed legal system. Firstly, Malacca applied the civil
law system. For this system, every law of the country is codified and written into the
law. For example, there were legal digests in Malacca Sultanate which are Hukum
Kanun Melaka and Undang-Undang Laut Melaka.
Besides that, Malacca Sultanate also applied the Islamic law legal system. After the
coming of Islam, Malacca introduce the Syariah law and to modify Malay adat law to
accord with Islam. For examples, earlier versions of the Hukum Kanun Melaka set out
adat law whereas latter versions show a mixture of adat law and principles of Syariah.
Last, Malacca Sultanate also applied customary law. The law applicable was Malay
adat law, specifically adat temenggung which is based on patrilineal tradition.
However, adat temenggung came via Palembang and was so altered under Hindu
influence there that it lost so much of its original matrilineal elements. The adat
temenggung was the law of the sultan and, therefore, autocratic in nature.

LW224
Outline the provisions of the Charter of Justice 1826.
(LAW 434 Sec A/Q1/ Oct 2010 6 marks)
Royal Charter of Justice refers to the permission granted by British Crown for a
statutory reception which gives power to the East India Co. to operate a competent
English legal system and establish reception of English common law. The first Charter
of Justice was granted in 1807 for a statutory reception of English law in Penang.
The Charter of Justice 1826 was the second royal charter of justice. This
Charter was granted in order to resolve the initial uncertainties as to the extent of
English Law to be applied in Malacca. This second charter in 1826 extends the hand
of English common law to the territory of Malacca and Singapore while Penang
receives English law for second time. A new court called The Court of Judicature of
Prince of Wales Island, Singapore and Malacca was created by this Charter. Its
jurisdiction was similar to that granted to Penang by the 1807 Charter but the English
Law to be applied was at it stood in November 27, 1826 and subject to local
conditions.
Under this charter, a professional judge, known as the Recorder was appointed. He
was assisted by lay judges, an ordinary person. All the Recorders who were sent to
dispense justice made Penang their headquarters, visiting Singapore and Malacca
only twice a year.
The first royal Charter of Justice of 1807
Complaints and petitions were made over many years for a better system of
administering justice and they were finally heeded more than twenty years after the
founding of the island. It came in the form of a Royal Charter of Justice of 1807. The
Charter is the most significant event in the Malaysian legal history as it marked the
beginning of the statutory introduction of English Law into this country. The Charter
established The Court of Judicature of Prince of Wales Island (as Penang was then
known) to exercise jurisdiction in all civil, criminal and ecclesiastical matters. It was

LW224
interpreted by the courts as introducing to Penang the law of England as it stood in

1807 in so far as it was suitable to local conditions and circumstances.
The third Royal Charter of Justice of 1855
A third Charter of Justice was granted in 1855 in recognition of the changes and
inadequacies of the system. It was due to the increasing number of cases for trial and
the system was ill-equipped to cope with the rapid changes brought on by booming
economy, especially in Singapore.
This third Charter enabled the reorganization of the court system. An additional
Recorder was appointed for Singapore and the jurisdiction of the Recorder in Penang
was extended to Province Wellesley, a mainland settlement across the island. Since
the court had two divisions, separate Registrars were appointed for each of the
divisions.
However, the transfer of the administration of the Straits Settlements from India to
the Colonial Office in 1867 made it necessary to reorganize the court system once
again.

LW224
Briefly explain how English Law was applied in the Malay States.
(LAW 431 Sec A/Q1/ Nov 2005 5 marks)
British intervention in the Malay states began in the second half of the nineteenth
century. The Malay Ruler concluded treaties of various dates, but similar form, with
the British whereby, the Malay Rulers, in return for British protection against internal
attack, agreed to accept British advisers.
Through the Residential System, the British imposed indirect rule over the Malay
States. English Law was introduced informally and indirectly through the Residential
System in two ways which are the enactment on the advice of the British
administrators and the decisions of the courts established by the British
administrators. Under this system, each Sultan accepted a British Resident whose
advice had to be asked and acted upon in all matters of administration and revenue,
except Malay religions and customs.
The Rulers were retained as sovereigns but actual government was in the hands
of British Residents. In 1895, four states, which are Perak, Selangor, Negeri Sembilan
and Pahang were brought together in a federation called the Federated Malay States.
The four British Residents were placed under a Resident-General responsible to the
Governor of the Straits Settlements who was designated High Commissioner of the
Federation.
The other five Malay States; Johor, Terengganu, Perlis, Kedah and Kelantan were
called the Unfederated Malay States. They received the reception of English law
through the British Advisers and when the Federated Malay States enactment was
extended to them by the Civil Law (Extension) Ordinance 1951.

LW224
Briefly explain the effects of the residential system on the adoption of English
law in the Malay states.
(LAW434-Section A-Q4:JAN2013 6 marks)
By 1888, the British managed to control Perak, Selangor, Pahang and Negeri
Sembilan and these states are known as Federated Malay States. British introduced
a sophisticated system of indirect rule known as Residential System.
However, this system gives some effects specifically on the adoption of English Law
on the Malay states. The first effect is the reception of the English Law to the
Federated Malay state. Under this system, each Sultan has to accept a British
Resident whose advice had to be asked and acted upon in all administrative matters
except related in Islam and Malay customs. In this system, the actual government was
in the hand of British residents which were responsible to the Governor of Straits
Settlements. Basically, it can be conclude that this system open the door for the
English law in these four states in just strokes of signs.
Besides that, the British Residential system also promotes uniformity of law since the
law applied for the administration is the English law and not different set of laws
previously operated in the Straits Settlement and the power of administration of justice
is under British Resident.
Next, the effect of British residential system has weakened the force of the local law
such as Syariah law and the Malay customary law as English law became the main
and basic law of the land. Even though the British residents does not have powers in
matters related to Islam and Malay customs, the reception of English law to some
extent weakened these two laws since the area of law govern by the local law is not
the same as before the application of English law.

LW224
Define customary law and explain the sources of law.
(LAW 431 Sec A/Q2/Apr 2010 6 marks)
Customary law is a regular pattern of social behavior which has been accepted by
the bulk of a given society as binding upon its members. These are customs which
the courts will enforce. Thus, customary laws are customs which have legal
consequences.
There are a few sources of customary law. First, customary law is derived from Malay
adat law. Malay adat in Peninsular is commonly divided into two contrasting systems,
which are adat perpatih and adat temenggung. Adat perpatih is characterized as
democratic because it exists on a peasant society, one that is organized matrilineally.
Conversely, adat temenggung is characterized as aristocratic, autocratic and
patrilineal.
Second, customary law is also derived from Chinese customary law. However, there
was problem to ascertain the substantive principle of law as there was neither
precedents form China nor authoritative texts to fall back on. Thus, the courts created
a uniform body of Chinese customary law which they applied to all persons of Chinese
race, regardless of their religion or domicile. For instance, the courts recognized the
Chinese practice of polygamous marriage.
Third, customary law is also derived from the Hindu customary law. The development
of Hindu customary law in the Malay Peninsula can be seen as an extension and
adaptation of Hindu customary law in India.
Last, source of customary law is also derived from native law of Sabah and Sarawak.
The application of customary laws in Sabah and Sarawak is more extensive and
systematic compared to in the Malay peninsula. Sabah and Sarawak have a long
history of codification of customary law. For example, there is UndangUndang
Mahkamah Melayu Sarawak.

LW224
Briefly explain TWO (2) effects of the law Reform (Marriage and Divorce) Act
1976 on the Chinese and Hindu customary laws.
(LAW 431 Sec A/Q4/ Apr 2009 6 marks)
The coming into force of the law Reform (Marriage and Divorce) Act 1976 on 1
March 1982 on the Chinese and Hindu customary laws has several effects. First, the
polygamous marriage among the Chinese and Hindu people is abolished. There is no
more practice of polygamous marriage among this people since section 5 and 6 of
this Act introduced monogamy to all people specifically to Hindu and Chinese
community. The new provisions forbid any person who is already lawfully married from
contracting a further marriage during the continuance of the existing marriage. All
marriage taking place on or after 1 march 1982 must be monogamous. According to
section 494 of the CPC, practice of polygamous is punishable offence up to 7 years
imprisonment.
The second effect of this Act is that there is a practice of compulsory

registration. The coming into force of this Act on 1 March 1982 requires a registration
of the marriage for every single marriage and if the marriage was and if the marriage
made before the law coming into force as illustrated under section 33. Although
section 33 provides for voluntary registration, under section 34, nothing in the Act shall
be construed to render valid or invalid marriage, merely by reason of its having been
or not having been registered. This has effect of validating all customary marriages
that were not registered before 1 March 1982, as long as the act of marriage is valid.
In Leong Wee Shing v Chai Siew Yin [2000], where the issue was whether the
Plaintiffs marriage was void for non-registration at the Registry of Marriages, it was
held that section 34 of the Reform Act had been satisfied. There was a proper tea
ceremony, there was an act of marriage, it had been properly solemnized and the non-
registration did not by itself invalidate the marriage.

LW224
Define ratio decidendi and illustrate ratio decidenci with reference to one
decided case.
(LAW 431-Sec A/Q2/Apr2008 6 marks)
Ratio decidenci is the legal principle or principles underlying the decision. It is a

source of law that binds future courts in other cases with similar facts. The ratio may
or may not be explicitly stated by the court; more usually, it has to be extracted from
the obiter dictum, which translates as remark in passing.
For instance, the qualification to apply the English law is illustrated in Attorney
General, Malaysia v Manjeet Singh Dhillon [1991]. The court held that in the absence
of any specific local legislation concerning contempt of court, the common law of
contempt as stated in R v Gray [1900] should be applied under section 3 CLA 1956.
That decision was later followed by the Court of Appeal in Murray Hiebert v Chandra
Sri Ram [1999]. Hence, it can be said the ratio decidenci of the earlier cases will be
followed by the later cases with similar facts in the future.

LW224
Explain legislative control as one of the main controls of subsidiary

legislation.
(LAW431-Apr2010/SecA/Q4-6 marks)
Legislative control is one of the main controls over subsidiary legislation. The
legislature exercises control over subsidiary legislation through the laying procedure.
An enabling statute may require legislation made under it to be laid before the
legislature, either for the legislatures information or confirmation. Example of a simple
laying formula are to be found in section 83(3) of the Trade Marks Act 1976 (Act 175),
which requires subsidiary legislation made thereunder to be laid before both Dewan.
Besides that, section 58(4) of the Trade Unions Act 1959) (Act 262) (Revised 1981),
which requires the subsidiary legislation to be laid before the Dewan Rakyat only.
Further elaborated, the laying procedure for confirmation by the legislature may be by
way of negative or affirmative resolution. In the negative resolution procedure, the
subsidiary legislation is effective unless the legislature passes a resolution annulling
it. An example is contained in section 19(3) of the Control of Imported Publication Act
1958. The alternative, the affirmative resolution procedure, is more effective method
of control because the subsidiary legislation ceases to have effect until, within the
prescribed period, the legislature passes a resolution affirming it. Section 15(1) of the
Sales Tax Act 1972 bears an example.
The legislature which grants the delegated powers by an enabling statute may
repeal the statute or revoke or vary the delegated powers.

LW224
State and explain THREE (3) advantages and disadvantages of the doctrine of
judicial precedent.
(LAW 431- Sec A/Q3/Apr 2009 6 marks)
The doctrine of judicial precedent has its own advantages and disadvantages. First,
the doctrine provides certainty in law. The doctrine of precedent therefore helps with
the questions of predictability as judicial precedent is rigidly followed. This certainty
leads to consistency and fairness in that like cases are dealt with in a similar way. This
means the legal profession can give more helpful advice regarding the law to their
clients including the outcome, cost and chances of success.
Next, the doctrine is able to avoid arbitrariness. By applying the precedent of earlier
decisions, the court may determine the outcome of the case. This practice can avoid
waste of judicial effort and time rethinking solutions to similar problems previously
settled.
Besides that, this doctrine also has the disadvantages. By applying the doctrine, the
law becomes rigid. The judge is bound to follow the precedent of earlier decisions. The
law becomes fixed and rigid unless the decision was overruled by recent case with
similar fact. This is however hard to overcome because the development of law is slow
and irregular. Sometimes the judges are reluctant to change the law.

LW224
Identify the types of Act and the legislation currently in force in Malaysia.
(LAW434 NOV2012/Sec A/Q3 6 marks)
Laws enacted by Parliament are called Act. There are four types of Acts. The first type
of Act, which is the most common Act is the Principal Act. One example of the Principal
Act is the Contract Act. The second type of Act is the Amendment Act, which makes
changes to a Principal Act. When a principal Act is heavily amended over the years,
the Percetakan Nasional, formerly called the Government Printer may print new copies
or reprints of the Act.
The third type of Act is the Revised Act, which results from changes made by the
Commissioner of Law under the powers conferred upon him in the Revision of Laws
Act 1968. For example, Civil Law Act 1956 (Act 67)(Revised 1972). Last, the fourth
type of Act is the Consolidated Act, which brings together in a simple Act two or more
Acts on a specific subject-matter which had been passed over a period of time.
Legislation is the law enacted by the legislature, and by the bodies and persons
authorized by the legislature. There are a few legislations currently in force in Malaysia,
which are Acts, Enactments and Ordinances. Laws enacted by the Parliament are
called Acts, but those law enacted by federal legislature between 1
April 1946 and 10 September 1959 are called Ordinances. Laws enacted by the State
Legislative Assemblies are referred to as Enactments, except in Sarawak where they
are known as Ordinances. Laws promulgated by the Yang di-Pertuan Agong during
an emergency proclaimed under Article 150 of the Federal Constitution are also called
Ordinances.
Besides that, there is subsidiary legislation. In Malaysia, section 3 of the

Interpretation Act defines subsidiary 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. In short, subsidiary legislation is law made
through powers delegated by the legislature to a body or person via an enabling or
parent statute.

LW224
Once a Bill has received the Royal Assent, it will be published. Briefly explain
the meaning of publication, its purpose and the effects of non-publication.
(LAW 431-APR2011/Sec A/Q5 6 marks)
In general, publication or gazetting is the official publishing of law or other

materials by the state. Publication means that Act comes into force. An Act of
Parliament cannot come into force until it is published. Publication is done in the Warta
Kerajaan Malaysia (Federal Gazette). An act comes into force on a prescribed date or
where no date is prescribed, the date immediately following the date of its publication
in the Gazette.
Acts enacted since the coming into force of the Revision of Laws Act 1968 (Act
1) are published in the Timbalan Akta (Act Supplement) in two categories. First, acts
that are considered as principal laws and intended to be permanent. Second,
amending acts, supply act and acts intended to be of a temporary nature. Acts in the
first category are numbered in sequence without reference to the year of their
enactment. However, prior to 1 January 1969, a new series of numbers was given to
Acts enacted in each year.
The purpose of the publication is to introduce the law and made it known to the
public. Once it was published, the law will come into force. An Act of Parliament cannot
come into force until it is published. There are a few effects of nonpublication. First,
the law cannot be enforced. Second, the law will not have any effect to the public.

LW224
With reference to a decided case, describe EITHER the literal rule or purposive
approach with respect to the interpretation of statutory provisions.
(LAW431-APR2010/Sec A/Q5 6 marks)
According to the literal rule, the words in a statute must be given their literal, plain and
ordinary meaning. In the words of Lord Esher in R v Judge of City of
London Court, if the words of an Act are clear, you must follow them, even though
they lead to a manifest absurdity. The court has nothing to do with the question
whether the legislature has committed an absurdity.
This rule is illustrated in Public Prosecutor v Chin Kim Foo. In this case, the
copyright in the sound recordings of two titles, which were first published in Malaysia
on 14 and 18 July 1988 respectively was infringed on 19 July 1988. The defendant
contended that copyright only subsisted from 1 January 1989, ie the beginning of the
calendar year following the year in which the sound recordings were first published.
That submission was based on section 19 of the Copyright Act 1987 which provides
that 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.
The court accepted that submission. On a literal reading of section 19, the court
held there was no copyright until 1 January 1989. The learned judge acknowledged
that such interpretation led to an absurdity, but said the clear words of section 19 did
not allow her to reach any other conclusion. Her decision was upheld on appeal.

LW224
Apart from the main rules of the statutory interpretation, what other references
can the courts use to assist them in interpreting statutes?
(LAW431-OCT2010/SecA/Q2 6 marks)
In interpreting statutes, courts are guided by four rules of interpretation and other
subsidiary rules. There are a few subsidiary rules such as the language rules, internal
aids and external aids.
First, one of the subsidiary rules is the language rules. There are several language
rules. One of it is Noscitur a Sociis, which means a word derives its meaning from its
context. For example, in Sykt Perniagaan United Aces Sdn Bhd &
Ors v Majlis Perbandaran Petaling Jaya, it was held that the term parking place must
be associated with the words which accompanied it, ie open space, garden,
recreation and pleasure ground all of which refer to places for pleasure and
recreation and not a thoroughfare; thus parking place was not analogous to street.
The second subsidiary rule is internal aids. Internal aids are parts of the statute
itself. They may be used as aids in interpretation. For instance, the short title. The High
Court ruled in PP v Chief Executive Secretary that the short title is part of the legislation
and can be used as an aid in interpretation. In that case, Smith J referred to the short
title of the Motor Vehicles Commercial Use Regulations in deciding that the
Regulations controlled motor vehicles when used commercially only, not when used
privately.
The third subsidiary rule is the external aids. External aids are materials outside
the statute. examples of external aids are dictionaries; interpretation statutes; previous
and subsequent statutes on the same subject-matter; and judicial decisions
interpreting statutes in pari materia.

LW224
Explain three (3) advantages and three (3) disadvantages of Alternative Dispute
Resolution (ADR).
(LAW434- Section A-Q5, Jun 2013 6 marks)
Alternative dispute resolution (ADR) is a process that is alternative legal method

to resolve disputes other than by court action. There are a few advantages and
disadvantages of alternative dispute resolution. First, ADR is a great cost effective and
quicker method of getting the parties to resolve the disputes without the need to
protracted dockets, litigation cost and risky trials.
Second, ADR can ensure time saving. With the use of ADR, the parties involved
can resolve their disputes quickly as compared to undergo lengthy hearing in the court.
Third, ADR provides privacy and confidentiality. Unlike court hearing that will be open
to public, ADR will be held privately between the parties and the third party that will
settle the dispute.
Even though ADR has a lot of advantages, there are also a few disadvantages
if we use ADR. First, there is a possibility of unskilled third party. This will lead to an
unjust decision or dissatisfaction between the parties. Second, there is no safeguard
of rules and procedures as in Court proceedings. No party can bring an action to the
court to argue on the formality of the ADR. Third, in ADR, there is a possibility of power
imbalance. For example, in a family mediation, there may be bias and unfair decisions
in making the decisions.

LW224
List three (3) reasons for the rising popularity of the Alternative Dispute
Resolution (ADR) among the general public and the legal profession in the
recent years.
(LAW434-Section A-Q5: Jan2013 - 6 marks)
Alternative dispute resolution (ADR) is a process that is alternative legal method to

resolve disputes other than by court action. ADR has gained immense popularity in
the past decade in most jurisdictions around the world. There are a few reasons for
the rising popularity of ADR among the general public and the legal profession.
First, ADR is a great cost effective and quicker method of getting the parties to
resolve the disputes without the need to protracted dockets, litigation cost and risky
trials.
Second, ADR can ensure time saving. With the use of ADR, the parties involved
can resolve their disputes quickly as compared to undergo lengthy hearing in the court.
In addition, there is only win-lose situation in the court system unlike ADR that can
provide win-win situation for both parties.
Third, ADR provides privacy and confidentiality. Unlike court hearing that will be
open to public, ADR will be held privately between the parties and the third party that
will settle the dispute.

LW224
Identify three (3) main differences between an Act of Parliament and a subsidiary
legislation.
(LAW 434-Section A-Q3:Jun 2014 -6 marks)
There are a few differences between an act of Parliament and a subsidiary legislation.
First, an act of Parliament is the laws enacted by the legislature or better known as
Parliament but subsidiary legislation is law made through powers delegated by the
legislature to a body or person via an enabling or parent statute.
Second, before an act becomes a law, it undergoes the legislative process, where
several procedures must be fulfilled. In order for an act to come into force, it has to go
through the parliament stage where there will be first reading, second reading,
committee stage, third reading and many others. Unlike act of parliament, subsidiary
legislation does not need to undergo such processes. However, the parliament may
repeal or revoke the delegated legislation through the laying procedure, where an
enabling statute may require legislation made under it to be laid before the legislature.
Third, an Act of Parliament cannot come into force until it is published. Publication is
done in the Warta Kerajaan Malaysia. On the other hand, publication is not necessary
for subsidiary legislation. There is no general statutory provision requiring the
publication of subsidiary legislation in Malaysia.

LW224
Briefly explain various modes of amendment of the Federal Constitution.
(LAW 434-Section A-Q2:Jun 2014 -6 marks)
There are various modes of amendment of the Federal Constitution. The first
mode of amendments is the amendment requiring a two-thirds majority. Most
provisions of the constitution can be amended by a Bill enacted for that purpose and
which is supported by not less than two-thirds of the total number of members of each
Dewan on its second and third readings. This may be considered as the common
method of amendment.
The second mode of amendment is the amendment requiring a single majority.

Certain provisions of the Constitution can be amended by an ordinary Bill, which is
supported by a simple majority of members present and voting in each Dewan. For
instance, the admission of any state to the federation, the composition of the Dewan
Negara and the rules concerning the election and retirement of its members.
The third mode of amendment is the amendment requiring the consent of the
Majlis Raja-Raja. The amendments of a number of provisions require, in addition to a
two-thirds majority, the consent of the Majlis Raja-Raja. These provisions, considered
the most important in the constitution, concern what are called sensitive issues such
as the Majlis Raja-Raja itself, the special position and privileges of the Malays and
natives of Sabah and Sarawak and citizenship.
The fourth mode of amendment is the amendments requiring the consent of the
Yang di-Pertua Negeri (Governor) of Sabah and Sarawak. Constitutional amendments
affecting special safeguards arranged for Sabah and Sarawak upon their accession
and enumerated in Article 161E require, in addition to a two-thirds majority, the consent
of the Yang di-Pertua Negeri of either or both of these states, as the case may be.
These safeguards concerned matters such as citizenship; the constitution and
jurisdiction of the High Court in Sabah and Sarawak.

LW224
Parliament and the State Legislative Assemblies may delegate some of their
legislative powers to another person or body.
Give three reasons for the delegation of powers.
(LAW434-Section A-Q4:Dec2013 6 marks)
The legislature has to delegate its law-making power for several reasons.
The first reason is that the legislature has insufficient time to enact all the
legislation, detailed in every aspect which is required in a modern society. It allows
Parliament to concentrate more on broad issues of policy rather than masses of detail.
For example, various parking rules set out by municipal councils.
The second reason is that the legislature are unable to make the law because
much modern legislation is highly technical and is best left to experts or administrators
on the job who are well versed with the technicalities involved. For example, if a new
piece of legislation needs to be introduced regarding the running of hospitals, there
may only be few members of parliament in the medical profession, and so there would
not be the necessary background knowledge in Parliament. In this case, Parliament
may delegate the responsibility of creating the legislation to the Malaysian Medical
Association.
The third reason is that the legislature is not continuously in session and its legislative
procedures are cumbersome. Delegation is necessary in situations where law need to
be made quickly, such as in emergencies, or to be amended or repealed quickly. For
instance, section 22 of the Interpretation Acts 1948 and 1967 provides that subsidiary
legislation may at any time be amended, varied, added to, revoked, suspended or
revived by the person or authority by which it was made or, if that person or authority
has been lawfully replaced by another person or authority, by that other person or
authority.

LW224
List out three (3) differences between arbitration and conciliation.
(LAW434-Section A-Q4:JAN2013 6 marks)
There are a few differences between arbitration and conciliation. First, arbitration is
an actual legal proceeding which is handled by a representative of the court and any
agreement is binding. On the other hand, conciliation is a less formal form of arbitration
and has no legal significance.
Second, the process of arbitration can only start if there exists a valid arbitration
agreement between the parties prior to the emergence of the dispute. In arbitration,
each of the parties met together in one room. In contrast with conciliation, there is no
need for such agreement. During conciliation, the parties in dispute are kept separate
in order to avoid the tense moment that might occur.
Third, arbitration is handle by representative from court thus the arbitrator has
complete authority over the meeting and arbitration agreement is a binding legal
document that both parties will be forced to adhere to. On the other hand, any party
can request the other party to appoint a conciliator. Thus, a conciliation resolution has
much less legal authority and either side is free to change its mind without the other
side having legal recourse.

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Adat Perpatih is matrilineal, whereas Adat Temenggung is patrilineal. Explain.
(LAW431-Section A-Q2:Apr2011 6 marks)
There are two types of Adat ; Adat Perpatih and Adat Temenggung. Both
systems are said to come from the same cradle which is Minangkabau in Sumatra.
Although it comes from the same origin, there are a few differences between adat
perpateh and adat temengung.
Firstly, we can see the differences in the adat systems itself. Adat Perpatih
applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat
Perpatih is its matrilineal form of organisation. It concerns with matters such as land
tenure, lineage, inheritance and election of members of lembaga and YDP. Matrilineal
is a system in which one belongs to the mother's lineage; it generally involves the
inheritance of property, names or titles from mothers to daughters. Intertribal marriage
is not allowed among Adat Perpatih followers. Punishment system in the laws of Adat
Perpatih generally aims to reform or rehabilitate the wrongdoer rather than retaliating
against him. Adat Perpateh is characterized as democratic as because it exists in a
peasant society.
Unlike Adat Perpatih, Adat Temenggung applies in other states. It is based on

the characteristic of the patrilineal form of organisation. Patrilineal is a system in which
one belongs to the father's lineage; it generally involves the inheritance of property,
names or titles from fathers to sons. Marriage between those who come from the same
tribe is allowed. Unlike Adat Perpatih, the laws in Adat Temenggung are harsh -
punishment is imposed as retribution. Conversely, adat Temenggung is characterized
as aristocratic and autocratic. Aristocratic because the rules are made by decree of a
ruler and autocratic because because the rules tend to define a crime as an
infringement of the rulers prerogative.

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Article 4(1) of the Federal Constitution states:
This constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of
the inconsistency, be void.
Elaborate on the supremacy of the Constitution and the factors that curtail it.
(LAW431- APR2005/Sec A/Q5- 6 marks)
The Federal Constitution is the supreme law of the federation. The supremacy of the
Federal Constitution is set out in Articles 4(1) and 162(6). By virtue of the following
article 4(1), federal constitution cannot be challenged and any law that is inconsistent
with it will be void. Article 162(6) also upholds the supremacy of the constitution with
regard to the pre-Merdeka law. Supremacy of the constitution is maintained by giving
to the courts right to review legislative and subsidiary legislation. Thus, when any law
violates the constitution, the court may declare it ultra vires and void.
Constitutional supremacy is applied in Malaysia. However, in reality, it is eroded by a

few factors. Firstly, the special powers of the Parliament to legislate to counter
subversion and emergency, the proclamation of which may not be challenged in court
under Article 149 and 150 respectively. It is still valid for the Parliament to enforce it
even if inconsistent with the constitution including the provisions guaranteeing
fundamental liberties.
Second, one of the factors that curtail the supremacy is the judicial attitudes in the
interpretation of the constitution. There are a few main principles may be discerned
from the judicial attitudes to constitutional interpretation. For instance, the constitution
must be interpreted within its four walls and not in the light of analogies drawn from
other countries. Its provisions must be read in the context of the entire constitution and
in the prevailing circumstances of Malaysia.

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Do written and unwritten constitutions exist in reality?
(LAW434-NOV2012/Sec A/Q3- 6 marks
Written and unwritten constitutions do exist in reality. For the written

constitutions, we have the legislation. Legislation is the law enacted by the legislature,
and by body authorized by the legislature. For example, we have the Federal
Constitution, the supreme law of the federation. Federal Constitution is a single written
document having special legal status which establishes the state and sets out the
structure and powers of the state. It is the supreme law of the country as illustrated in
Article 4(1) of the Federal Constitution. Countries with written constitution are the
United States of America, India and Malaysia.
Besides that, unwritten constitutions also exist in reality. Unwritten constitution is

not codified in a single document. The rules and principles of the Constitution are
scattered in the forms of statutes, charters, political conventions and practices.
Unwritten constitutions exist in England where it exist in many forms such as statutes,
opinion of jurists and legal scholars and common law.

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PART B (20 MARKS)

Highlight the differences between section 3(1)(a) and sections 3(1)(b) and (c) of
the Civil Law Act 1956. Discuss the extent to which English Law is a part of
Malaysian Law today.
(LAW 431 Sec B/Q1/Nov 2005 20 marks)
English law means the common law of England and the rules of equity and in
prescribed circumstances, English statutes. The common law is the body of rules
developed by the old common law courts, based on the customs throughout England.
Equity on the other hand, is the body of rules developed first by the Lord Chancellor.
It came into being to supplement the common law, to correct its defects and mitigate
its harshness. Section 3 of the Civil Law 1956 is the statutory authority for the
application of English Law throughout the whole of Malaysia.
Section 3(1) provides for the general application of English law. It states;
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;
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 to however to subsection
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.

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As stated above, section 3(1) is further divided into three subsections, which are
section 3(1)(a), 3(1)(b) and 3(1)(c). There are few differences that we can highlight
between those three subsections. Firstly, they are different in wording between these
subsections. It means that there is a difference in the extent to which English law is
applicable in Malaysia. In subsection 3(1)(a), it is stated that West Malaysia or any part
thereof can only apply the common law of England and rules of equity as administered
in England. However, for subsection 3(1)(b) and 3(1)(c), in Sabah and Sarawak
respectively, they can apply the common law of England and the rules of equity,
together with statutes of general application, as administered or in force in England.
This clearly shows the different types of law were applied in West Malaysia, Sabah
and Sarawak. Statute of general application is not applicable in west Malaysia.
The second difference between the subsections can be seen through the cutoff dates.
For section 3(1)(a), the cut-off dates for West Malaysia is on 7th April 1956. For section
3(1)(b), the cut-off dates for Sabah is on 1st December 1951. For section 3(1)(c), the
cut-off dates for Sarawak is on 12 December 1949. This means that there may be
three sets of different laws applicable in those respective states.
The extent to which English law is applied in Malaysian law is subject to four
provisions. First, there must be absence of local legislation. This qualification is
contained in the opening proviso in section 3(1) of the Civil Law Act 1956. The
qualification is merely the statutory recognition of judicial practice of resorting to
English law to fill lacunae in the local law. The qualification is illustrated in Attorney
General, Malaysia v Manjeet Singh Dhillon [1991] where the court held that in the
absence of any specific local legislation concerning contempt of court, the common
law of contempt as stated in R v Gray [1900] should be applied under section 3 CLA
1956. That decision was later followed by the Court of Appeal in Murray Hiebert v
Chandra Sri Ram [1999].
Second, it is subjected to the cut-off dates. Only common law and rules of equity (and
in Sabah and Sarawak, statutes of general application) administered in England on
the dates specified; 7 April 1956 for West Malaysia, 1 December 1951 for Sabah; and
12 December 1949 for Sarawak can be applied to fill the lacunae in local law. As the
Privy Council put it in Lee Kee Chong v Empat Nombor Ekor (NS) Sdn Bhd & Ors,

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their lorships need not consider developments in English Law after 1956 because
under section 3(1) CLA 1956 any subsequent march in English authority is not
embodied.
However, despite the clear wording of section 3(1) to the effect that Malaysian court
shall apply English law existing on the specified dates, in practice the courts may follow
developments in English common law after such dates, though not binding, are
persuasive. This was made clear by the Privy Council in Jamil bin Harun v Yang
Kamsiah & Anor in 1984.
Third, it is subjected to the suitability to the local circumstances. English law is

applicable only to the extent permitted by local circumstances and inhabitants and
subject to qualifications necessitated by local circumstances. This qualification,
contained in the concluding proviso in section 3(1), is commonly referred to as the
local circumstances proviso. The effect of the local circumstances proviso in the
application of English law can be seen in Syarikat Batu sinar v UMBC Finance [1990],
concerning negligent failure of a finance company to indorse its claim to ownership of
a tractor on the Vehicle Registration Card and whether such negligence forfeits its
claim. The English practice was different from Malaysia therefore constitutes failure to
follow the decision as it does not suit the local circumstances of the local inhabitants.
Fourth, it is subjected to the types of law applicable in West Malaysia, which are the
common law of England and rules of equity and while in Sabah and Sarawak the law
applicable are the common law of England, rules of equity and statute of general
application. The difference has perpetuated a controversy which earlier arose from
section 3(1) of the Civil Law Act; whether English statutes of general application
applicable in West Malaysia. Two views argued on this matter. Professor Bortholemew
holds that such English statutes are applicable. Joseph Chia, in discussing the
corresponding provision in the Civil Law Act 1956, expresses a contrary opinion.
Judicial opinion supports the latter based on the case of Mokhtar v Arumugam, on the
question whether damages in the nature of interest for delay in returning specific goods
could be awarded in Malaysia. It was held that such a remedy, being a creature of
English statute, is not available here. The rationale was endorsed by the Supreme

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Court in Permodalan Plantation Sdn Bhd v Rachuta Sdn Bhd, where it held the
defence of legal set-off, based on an English statute, did not apply in West Malaysia.
Section 5 of the Civil Law Act 1956 provides for the application of English law in
commercial matters. The different terminology used in section 5 (the law to be
administered), compared to that in section 3(1) (which specifies the relevant sources
of English law), shows that section 5 introduces, where applicable, the whole English
Law including statutes. There is, therefore, greater reception of English law in
commercial matters.
The difference in wording between subsections (1) and (2) of section 5 means there
is a difference in the extent to which English Law is applicable in commercial matters
in the former Malay states on the one hand, and Melaka, Penang, Sabah and Sarawak
on the other hand. Section 5(1) introduces into the former Malay states the law
administered in England on 7 April 1956 whereas section 5(2) introduces the law
existing in England on the same date that the issue has to be decided in Melaka,
Penang, Sabah and Sarawak.
Section 6 CLA 1956 expressly excludes the application in Malaysia of the

English law concerning the land tenure. This was because there already existed local
legislation concerning land matters, when the CLA was enacted in 1956. In Malaysia,
we have the National Land Code derived from the Torrens System.
In conclusion, Malaysia has received the reception of the English system as our
law. This can be seen on the application of Section 3(1) and section 5 of the Civil Law
Act 1956.

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JUN 2013 PART B QUESTION 1
With reference to relevant provisions and decided cases, discuss the effect of
the Law Reform (Marriage and Divorce) Act 1976 on the Chinese and Hindu
customary laws in Malaysia. (20 marks)
Customary law is a regular pattern of social behavior which has been accepted
by the bulk of a given society as binding upon its members. These are customs which
consequences. One of the laws derived from customary law is the Chinese and Hindu
customary law. The application of customary laws as personal laws within the
Malaysian legal system had at times given rise to internal conflicts. Thus, the Law
Reform (Marriage and Divorce) Act 1976 comes into force on 1 March 1892 and
introduced significant changes to regulate or regularize aspects of the marriage and
divorce of non-muslims.
There are several effects on the Chinese and Hindu customary laws. First, the
polygamous marriage among the Chinese and Hindu people is abolished. There is no
more practice of polygamous marriage among this people since section 5 and 6 of this
Act introduced monogamy to all people specifically to Hindu and Chinese community.
The new provisions forbid any person who is already lawfully married from contracting
a further marriage during the continuance of the existing marriage. All marriage taking
place on or after 1 march 1982 must be monogamous. According to section 494 of the
CPC, practice of polygamous is punishable offence up to 7 years imprisonment.
The second effect of this Act is that there is a practice of a compulsory

registration. The coming into force of this Act on 1 March 1982 requires a registration
of the marriage for every single marriage and if the marriage was and if the marriage
made before the law coming into force as illustrated under section 33. Although section
33 provides for voluntary registration, under section 34, nothing in the Act shall be
construed to render valid or invalid marriage, merely by reason of its having been or
not having been registered. This has effect of validating all customary marriages that
were not registered before 1 March 1982, as long as the act of marriage is valid. In
Leong Wee Shing v Chai Siew Yin [2000], where the issue was whether the Plaintiffs
marriage was void for non-registration at the Registry of Marriages, it was held that

LW224
section 34 of the Reform Act had been satisfied. There was a proper tea ceremony,
there was an act of marriage, it had been properly solemnized and the non-registration
did not by itself invalidate the marriage.
The third effect of this Act is that it does not affect or negate customary form of
marriages. Couples may continue to marry according to the customary rites, provided
such a marriage is solemnized by a Registrar in accordance with Part III of the Act.
Under section 22(1)(c) the solemnization of a religious or customary marriage may be
effected on two conditions; that the person solemnizing the marriage must be a
religious officer, or a person appointed as an Assistant Registrar; and the couple must
submit a statutory declaration to the Assistant Registrar. In practice, marriages are
solemnized in a church or temple or clan association premises, as may be permitted
by the religion or customs or usage of the parties. A Registrar may be appointed within
these institutions to solemnize the marriage and he would issue a marriage certificate.
The fourth effect is that this Act provides ground for divorce. Petition for divorce
may be made on the three grounds. First, one of the parties of marriage has converted
to Islam as in the case of Letchumy v Ramadason where it concerned with
maintenance of the wife. However, the husband had converted to Islam so he had
applied to set aside the order on the ground that he had become a Muslim and under
Islamic law the petitioner has no right to claim maintenance because she has not
converted to Islam with her husband during the eddah period. The court held that since
section 3(1) of the Law Reform Act excludes the operation of the Act to a Muslim, and
as the respondent had become a Muslim, the act cannot be made to apply to him.
Second, the Act also introduces offence in matters of irretrievable breakdown

marriage as in the case of Sivanesan v Shymala. Third, divorce by mutual consent as
governed by section 52 of Law Reform Act. As in the case of Re Divorce Petition Nos
18, 20 and 24, if the parties have been married for more than 2 years, have freely
consented to the dissolution and a proper provision is made for the wife and for the
support, care and custody of the children, a judgments of divorce must be given.
The fifth effect of this Act is that it underlines the age permissible to marry.
Section 10 of the Act provides that any marriage purported to be solemnized in
Malaysia shall be void if at the date of marriage either party is under the age of

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eighteen years. However, there is provision for a female who has completed her 16 th
year to apply for a licence granted by the Chief Minister under section 21(2) of the Act.
It should be noted too that notwithstanding that the minimum age for marriage is 18
years, under section 12(1) of the Law Reform (Marriage and Divorce) Act, a person
below the age of 21 years is required, before marrying, to obtain the consent in writing
of his or her father.
In conclusion, this Act provides uniformity in law. The force of Law Reform
(Marriage and Divorce) Act 1976 provides a uniform law to govern the matters on
divorce, marriage and ancillary and it only govern the Chinese and Hindu. The new
law is certain since it provide the same law and order for all marriage constructed by
Hindu and Chinese. It also avoid conflict of law and issues involving the question of
what law should be use and apply by the court.

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There are two main stream of adat - the adat perpateh and adat temenggong.
The adat perpateh originates from the district of minangkabau in Sumatra,
Indonesia the adat temenggong is believed to have also originated from
Sumatra, but the characteristics of both forms of adat are almost diametrically
opposite. (Sharifah Suhana Ahmad, Malaysian Legal System (1999), MLJ, p.16)
With reference to cases, legislation and constitutional provisions, discuss the

above statement.
(LAW 431 Sec B/Q1/ Oct 2008 20 marks)
Customary law is a regular pattern of social behavior which has been accepted
by the bulk of a given society as binding upon its members. These are customs which
consequences. One the most prominent customary law is derive from the Malay adat
law.
Malays in Peninsular Malaysia are governed by adat and Islamic law in addition
to the general law applicable to all communities. 'Adat' refers to the Malay customary
laws. Adat has preserved and maintained traditional Malay society for many centuries
and the importance of adat in their lives is reflected in the Malay maxim biar mati anak,
jangan mati adat, meaning let the child die rather the custom. It is perhaps one of
the most powerful statements relating to adat and its place in Malay society. There are
two types of Adat ; Adat Perpatih and Adat Temenggung.
Likewise perpetrated is the common origin of both adat systems as posited by
the nineteenth century scholars of adat. Both systems are said to come from the same
cradle which is Minangkabau in Sumatra. They are called after two mythical law-givers:
Dato Parapatih nan Sabatang and Dato Katumanggungan who were half-brothers.
Although it comes from the same origin, there are a few differences between adat
perpateh and adat temengung.
Firstly, we can see the differences in the adat systems itself. Adat Perpatih
applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat
Perpatih is its matrilineal form of organisation. It concerns with matters such as land
tenure, lineage, inheritance and election of members of lembaga and YDP.

LW224
Matrilineal is a system in which one belongs to the mother's lineage; it generally

involves the inheritance of property, names or titles from mothers to daughters.
Adat Perpatih which recognizes matrilineal system inherits the customary land
only to daughters as only female lineage have the right to inherit their family ancestral
land (tanah pusaka). This is because ancestral land is considered to belong to a clan,
not to an individual and female descendants of the clan are appointed as guardians of
the land. As in the case of Munah v Isam, it describes the position of ancestral land
according to Adat Perpatih. In this case, a certain land was transferred outside of the
TigaNenek clan. The court ordered for the said land to be returned to the rightful
heiress, Isam, conditional upon payment of a sum of money. On the other hand, adat
Temenggong which recognizes patrilineal system inherits the property of deceased
based on the syariah law where the son is entitle to inherits in a ratio of 2:1 from
daughter.
Inter-tribal marriage is not allowed among Adat Perpatih followers. Punishment

system in the laws of Adat Perpatih generally aims to reform or rehabilitate the
wrongdoer rather than retaliating against him. Adat Perpateh is characterized as
democratic as because it exists in a peasant society.
Unlike Adat Perpatih, Adat Temenggung applies in other states. It is based on

the characteristic of the patrilineal form of organisation. Patrilineal is a system in which
one belongs to the father's lineage; it generally involves the inheritance of property,
names or titles from fathers to sons. Marriage between those who come from the same
tribe is allowed. Unlike Adat Perpatih, the laws in Adat Temenggung are harsh -
punishment is imposed as retribution. Conversely, adat Temenggung is characterized
as aristocratic and autocratic. Aristocratic because the rules are made by decree of a
ruler and autocratic because because the rules tend to define a crime as an
infringement of the rulers prerogative.
The application of adat temenggong can be seen through the matter of

distribution of property after divorce or called the matrimonial property which are
divided into three kinds, namely harta pembawa, harta dapatan and harta sepencarian.
Harta pembawa refers to inherited property bought by the husband to the marriage,

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which reverts to him on divorce. Harta dapatan is brought by the wife to the marriage
which reverts to her on divorce and harta sepencarian refers to property acquired
jointly during the marriage.
In Boto bin Taha v Jaafar bin Muhamad, the wife claimed against the
matrimonial property that her husband had purchased. When the husband divorces
his wife, court decided moveable properties such as fishing boat can also be placed
under the provisions of the matrimonial property even if she did not give financial
contributions to the husband to buy the property, but his wife has many times
accompanied her husband when he went fishing in the sea together. This is enough
to count as a contribution in buying the property in the event of dispute. Although the
wife did not participate directly in the fish business for her husband, the presence of
her husband caused the peace of mind that allowed it to manage the business
effectively.
Harta sepencarian is applicable to all types of property jointly acquired as was

judgd in the case of Roberts v UmmiKalthom. In this case husband is a soldier who
converted to Islam were married to Malay women and have brought property during
the marriage and the name of the property under his wifes name. When they divorce,
the husband has claimed the property as matrimonial property. The High Court ruled
that the property was jointly acquired property, although at the time the plaintiff was
not a Malay but English people who have converted to Islam.
The dichotomy, democratic-autocratic, matrilineal-patrilineal, includes yet
another: unwritten-written. Adat perpatih is expressed in perbilangan or kata adat
(pithy traditional sayings or maxims) passed down orally from generation to generation.
Adat temenggung, on the other hand, is a body of written rules. The latter is found
several legal digests, for example, the Undang-Undang Melaka, Undang-Undang
Kerajaan Pahang, the Kedah digest, the Undang-Undang Kerajaan and the Ninety-
nine Laws of Perak. The dichotomy, unwritten-written, like its equivalent, adat perpatih-
adat temenggung, should be taken with a pinch of salt as three legal digests of adat
perpatih exists in Malaysia: the Undang-Undang Keturunan daripada Minangkabau
turun ka-Negri Perak (also known as UndangUndang Dua Belas) from Perak and one
each from Kuala Pilah and Sungai Ujong, Negeri Sembilan.

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The doctrine of stare decisis or the rule of judicial precedent dictates that a
court other than the highest court is obliged generally to follow the decisions of
the courts at a higher or the same level in the court structure subject to certain
exceptions..
-Dalip Bhagwan Singh v PP [1998] 1 MLJ 1
With reference to the relevant authorities, discuss the application of the doctrine
of judicial precedent in Malaysia.
(LAW 431- Sec B/Q2/ Apr2006 20 marks)
In Malaysia, as in other common law countries, the law is to be found not only in
the legislation, but also in cases decided by the courts. The doctrine of stare decisis,
being a fundamental doctrine in the common law system, applies in Malaysia. Chang
Min Tat FJ in PP v Datuk Tan Cheng Swee & Anor affirms the court to follow the
doctrine of judicial precedent. However, decisions of courts in other common law
country are only persuasive and subject to the reception of English law under certain
provisions of the Civil Law Act 1956.
The strict application of precedents in the common law system is known as the
doctrine of binding precedents or stare decisis. This doctrine means that in cases
where the material facts are the same, a court must follow the prior decisions of a
higher court, and in the case of same courts its own prior decisions and prior decisions
of a court of the same level whether past or present, in the same hierarchy. Ratio
decidenci is the legal principle or principles underlying the decision. It is a source of
law that binds future courts in other cases with similar facts. The practice of following
precedents in similar fact situations is a feature of all major legal system.
The doctrine of judicial precedents has a two-way operation, which are vertical and
horizontal operation. For the vertical operation a court is bound by the prior decisions
of all courts higher than itself in the same hierarchy. The hierarchy of courts of any
common law country will immediately make obvious the precedents of which court bind
the other courts. Briefly, decisions of the Federal Court bind all courts. The Court of
Appeal is bound by the decisions of the Federal Court, and its decisions bind the two

LW224
High Courts and the subordinate courts. The High Courts are bound by decisions of
the Federal Court and the Court of Appeal, and their decisions bind the subordinate
courts. Decisions of the subordinate courts are, of course, not binding.
Every court in the hierarchy must follow the prior decisions of courts higher than
itself even if the decision is wrong. It may not decline to follow the higher courts
decision on any ground. In the case of Harris Solid State, counsel for the appellants
tried to argue before the Court of Appeal that the majority decision of the Federal Court
in Rama Chandran was wrong and ought not to be followed. It was held that the court
is bound to follow and apply the law as stated by the majority in Rama Chandran, even
it suffers from any infirmity. It is a decision of the apex court and constitutes binding
precedent.
While a court may not refuse to follow a decision of a higher court, it may choose
between two conflicting decisions. In the case of two conflicting decisions of the Court
of Appeal, courts lower in the hierarchy may choose to follow either decision
irrespective of whether it is the earlier or later decision. However, in the case of two
conflicting decisions of the Federal Court, all court must follow the later decision
because the later decisions represents the existing state of law and therefore, prevails
over the earlier decisions. These principles were laid down by the Federal Court in the
case of Dalip Bhagwan Singh v PP.
The vertical operation is not sraightforward in Malaysia because of the status of

decisions of the Privy Council and status of decisions of predecessor courts of the
present Federal Court. The decision of the Privy Council were binding on Malaysian
Courts in two circumstances; where the decision was in the case of appeal from
Malaysia and where the decision was in a case on appeal from another common law
country and the law in point was the same as in Malaysia. Such circumstances can be
seen form the case of Wong See Leng v Saraswathy Amal, where counsel for
respondent argued that the Court of Appeal was bound by its own previous decision
in Yaacob bin Lebai Jusoh v Hamisah binti Saad. The court rejected that submission
because it was contrary with the decision in Privy Council decision in Haji Abdul
Rahman.

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For the horizontal operation of the doctrine of stare decisis, some courts are bound
by their own prior decisions and prior decisions of a court of the same level, whether
past or present. Three phases need to be looked at in order to learn about horizontal
operation in Malaysia. However, the important phase for horizontal operation is post
1994. Section 2 of the Constitution (Amendment) Act 1994 and s 5(c) of the Courts of
Judicature (Amendment) Act 1994 renamed the Supreme Court as the Federal Court.
After the three-tier structure of the superior court which existed before 1 January 1985
is reinstated, a few issues arise.
The first issue in horizontal operation is whether the federal court is bound by the
decision of the Supreme court. In civil matters, the Federal Court does not regard itself
bound by decisions of the Supreme court. This can be seen in Malaysian National
Insurance Sdn Bhd v Lim Tiok where the case concerned the extent of liability of
insurers against third party risks under a compulsory insurance policy in a direct action
brought by a third party. The Supreme Court, in Tan Chik bin Ibrahim v Safety Life and
General Insurance had decided that in a situation involving independent tortfeasors,
insurers are liable only to the extent to which their insured is adjudged responsible for
the accident. The issue in the instant case was whether the Supreme Court decision
in Tan Chik should be reviewed to determine whether it was wrongly decided and if
so, whether it should be overruled. By applying the principles in Food Corporation of
India v Antclizo Shiping Corporatio, the Federal Court reviewed Tan Chik, decided that
it was wrongly decided and should not be followed. In effect, the Federal Court
overruled a decision of the Supreme Court.
On the other hand, in criminal matters, the Federal Court holds itself bound by the
decisions of the Supreme Court. In Tan Boon Kean v PP, the Federal Court was faced
by with the issue of the standard of proof to be satisfied by the prosecution at the close
of the prosecutions case in a non-jury trial under section 180 of the Criminal
Procedure Code. Earlier, the Supreme Court, in Khoo Hi Chiang v PP and Another
Appeal, had decided that the duty of the court at the close of the prosecutions case
was to undertake a maximum evaluation of the evidence to determine whether or not
the prosecutor had established the charge against the accused beyond reasonable
doubt. The Federal Court unanimously held itself bound by the Supreme Court
decision.

LW224
The second issue in the horizontal operation is whether the Federal Court is bound
by its own previous decisions. The present Federal Court is not bound by its own
previous decisions. This is illustrated in the case of Dhalip Bhagwan Singh v PP where
the judge stated that the practice of following precedent is not binding on us. In this
case, the federal Court has power to depart from its previous decision. According to
the case, in the case of two conflicting decisions of the Federal Court on a point of law,
the later decision prevails over the earlier decision because the later decision
represents the existing state of the law. For instance, the case of Arulpragasan a/l
Sandaraju v PP illustrates the departure of the Federal Court from its previous decision
on the issue of burden of proof at the close of the prosecutions case.
In civil matters, the policy of the present Federal Court was initially hazy. Its policy
was formulated in Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh,
where the Federal Court is bound by its previous decision when the appellant invited
the Federal Court to depart from its majority decision in Rama Chandran. This case is
concerned with the application for certiori to quash a decision of the Industrial Court.
However, the judgement of the Federal Court in later case of Koperasi Rakyat Sdn
Bhd v Harta Empat, had helped to dispel the haze and reveal the policy of the Federal
Court in clearer light.
In Harta Empat, the defendant cooperative society appealed to the federal court
against a decision of the court of Appeal to the effect that a charge created in
contravention of section 133 of the Companies Act 1965 was void and unforceable.
The court of Appeal reached that decision in Co-operative Central Bank Ltd v Feyen
Development and used it as binding precedence. In the light of above judgement, it is
submitted that the practice of the present Federal Court in civil matters is the same as
in criminal matters, which is, while treating the previous decisions as normally binding,
the Federal Court will depart from a previous decision when it appears right to do so.
The third issue in the horizontal operation is whether the Court of Appeal is bound
by its own previous decision and the circumstances where Court of Appeal may depart
from its own previous decision. In Kesultanan Pahang v Sathask Realty Sdn Bhd, the
Court of Appeal was urged by counsel for the appellant to reject its earlier decision in
Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union, which, in

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the counsels opinion, had wrongfully refused to follow the Privy Council decision in
South East Asia Bricks. The judge rejected the invitation as the court of Appeal is
bound by its own decision, quoting the dictum by Gopal Sri Ram in the Federal Court
in Kumpulan Perangsang Selangor Bhd.
There is also circumstance where the Court of Appeal may depart from its own
previous decision. In the case of Kwong Yik Bank Berhad v Ansonia Management
Associates Sdn Bhd, where it concerned about the decisions of the subordinate courts
in interlocutory proceedings to the High Court. The Court of Appeal was faced with two
lines of conflicting authorities, the High Court decision in Syarikat Kayu Bersatu Sdn
Bhd and Yupaporn Seangarthit. The Court of Appeal overruled the High Court
decision in Syarikat Kayu Bersatu and the cases which followed it. In doing so, the
Court of Appeal justified its departure from a previous decision in Yupaporn through
the justification made by Gopal Sri Ram JCA.
The fourth issue in horizontal operation is whether the High Court is bound by the
decision of another High Courts decision. In practice, Malaysian High Court judges
have acted on the assumption that one High Court judge whether exercising original
or appellate jurisdiction is not bound by a decision made by another High Court judge.
For instance, in Joginder Singh v PP, the High Court exercising appellate jurisdiction
held that it was not bound to follow a decision of the High Court in an appeal presided
over by three judges empanelled under s 306(3) of the Criminal Procedure Code in
Hassan bin Isahak v PP. The practice of the High Courts described above has
continued unchanged until today.
In conclusion, doctrine of judicial precedence operates in two ways, which is the

vertical operation and horizontal operation. Over the years, Malaysian court has
applied the doctrine of judicial precedent in our legal system.

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State and explain the legislative process in Parliament.
(LAW431-OCT2006/Sec B/Q2 20 marks)
Article 44 of the Federal Constitution vests the legislative authority of Malaysia in

Parliament, comprising the Yang di-Pertuan Agong and the Houses of Parliament
which are the Dewan Negara (Senate) and the Dewan Rakyat (House of
Representative. According to this article, parliament has the power to enact the law of
our country.
In general, legislation is enacted by Parliament by introducing a Bill, which is

passed by both Dewans and assented to by the Yang di-Pertuan Agong. The
legislative process is important to make a Bill turn into the law. There are two main
stages in the process, which are the pre-parliamentary and Parliamentary.
The pre-parliamentary stage covers the proposal, consultation and drafting stage.
Proposal for legislation may come from various sources. Wherever the proposal
comes from, it has to be accepted in principle by the Cabinet. A long series of
discussions follow within and between the relevant governments authorities involved.
Experts and interested outside bodies may be consulted. When the outlines have been
worked out, the proposal is sent to the Parliamentary draftsperson in the Attorney
Generals Chambers to be put into legal language and form. The proposal becomes a
Bill. After approval by the Cabinet, the Bill is ready to be introduced into Parliament.
In the Parliamentary stage, a government Bill is introduced into Parliament by the

Minister responsible in the subject-matter. When it has been passed, after debate and
voting, by Dewan Rakyat, it is referred to the Dewan Negara where it goes through the
same processes. In each Dewan, the Bill goes through four stages which are the first
reading, second reading, committee stage and third reading.
For the First Reading, this is a mere formality and may take place even if the Bill has
not been printed and circulated. All that happens is that the Minister presents the Bill
by having its short tittle read by the clerk of the Dewan.
For the Second Reading, this can occur only when the Bill is printed and circulated. It
is the most important stage. Here the Minister outlines the main principles of the Bill.
A debate on the principles ensues. If the Bill receives the requisite number of votes

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either by simple majority of the members present or twothirds majority of the total
number of members of the Dewan, it proceeds to the Committee Stage.
For the Committee Stage, there will be detailed examination of the Bill and
consideration of amendments, followed by a report on the Bill to the Dewan. In the
past, very rarely was a Bill referred to an ad hoc Select Committee which has the
power to obtain the views of the public. However in May 2004, the government
announced that in line with its policy of a transparent, accountable and open
administration, it is moving towards the establishment of Select Committees for very
important Bills that are related to public interest. Reference to a committee is to enable
the details of the Bill to be discussed in a less formal manner. At the end of the
discussion, the Minister moves the motion to report the Bill to the Dewan. If the motion
is accepted the Dewan resumes sitting.
For the Third Reading, the Bill is reviewed. A debate, if any, centres only on general
principles. Substantive amendments are not allowed except, with the permission of the
Speaker, to correct errors or oversights. If passed in this reading, the Bill is sent to
Dewan Negara where the same procedure will be conducted. When the Bill is passed
with or without amendments by the Dewan Negara, it is returned to the Dewan Rakyat.
The Dewan Negara has no power to veto, reject or insist on its amendments to a Bill
passed by the Dewan Rakyat.
When the Bill is passed by both Dewans, it is presented to the Yang diPertuan Agong
for his assent. Under Article 66(4) of the Federal Constitution, the Yang di-Pertuan
Agong shall, within thirty days after it is presented to him, assent the Bill by causing
the Public Seal to be affixed thereto. Where assent is not effected within the specified
time, theBill becomes law as if it has been assented to. Once the Bill is given the Royal
Assent, it becomes an Act.
An Act of Parliament cannot come into force until it is published. Publication is done
in the Warta Kerajaan Malaysia (Federal Gazette). An act comes into force on a
prescribed date or where no date is prescribed, the date immediately following the
date of its publication in the Gazette.

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In conclusion, in order for the Bill to become the Act of Parliament, it must
undergo the legislative process. This process is to ensure that all law made in our
country is just and reasonable.

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Taking into consideration the changing social, political and economic

conditions, the Reid Commission recommended a method of constitutional
amendment which, should neither be so difficult as to produce frustration nor
so easy as to weaken seriously the safeguards which the Constitution
provides.
(Reid Commission Report, para 80, p.33)
In view of above statement, explain the modes of amendment set out in the
Federal Constitution and whether the existing modes that you have described
reflect the recommendation of the Reid Commission.
(LAW431-OCT2009/Sec B/Q3 20 marks)
The Federal Constitution, after the formation of Malaysia, provides for its
amendment in Article 159 and 161E. These set out four different types of amendment,
according to the provisions which is sought to be amended.
The first mode of amendments is the amendment requiring a two-thirds majority.

Most provisions of the constitution can be amended by a Bill enacted for that purpose
and which is supported by not less than two-thirds of the total number of members of
each Dewan on its second and third readings. This may be considered as the common
method of amendment.
The second mode of amendment is the amendment requiring a single majority.

Certain provisions of the Constitution can be amended by an ordinary Bill, which is
supported by a simple majority of members present and voting in each Dewan. These
provisions are set out in Article 159(4). They cover some matters of considerable
importance. For instance, the admission of any state to the federation, the composition
of the Dewan Negara and the rules concerning the election and retirement of its
members.
The third mode of amendment is the amendment requiring the consent of the
Majlis Raja-Raja. The amendments of a number of provisions require, in addition to a
two-thirds majority, the consent of the Majlis Raja-Raja. These provisions, considered
the most important in the constitution, concern what are called sensitive issues.
There are few sensitive issues such as the Majlis Raja-Raja itself, the precedence of

LW224
Rulers and Governors, the federal guarantee concerning the institution and succession
of Rulers, the special position and privileges of the Malays and natives of Sabah and
Sarawak, legitimate interests of other communities and citizenship. The spectrum of
provisions concerning the restrictions on freedom of speech in the interest of internal
security and public order and any law passed thereunder prohibiting the questioning
of any of the so-called sensitive issues. A law altering the boundaries of a state also
requires the consent of the Majlis Raja-raja, in addition to the consent of the state itself.
The fourth mode of amendment is the amendments requiring the consent of the
Yang di-Pertua Negeri (Governor) of Sabah and Sarawak. Constitutional amendments
affecting special safeguards arranged for Sabah and Sarawak upon their accession
and enumerated in Article 161E require, in addition to a two-thirds majority, the consent
of the Yang di-Pertua Negeri of either or both of these states, as the case may be.
These safeguards concern citizenship; the constitution and jurisdiction of the High
Court in Sabah and Sarawak, and the appointment, removal and suspension of its
judges; state legislative and executive powers and federalstate financial
arrangements; religion; the national language and the special treatment of natives of
the states; and entry and residence in the state.

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Despite its merits, delegated legislation has several defects. It brings with it
the danger of the enhancement of the powers of the executive and the erosion
of powers of the legislature.
Ahmad Ibrahim, The Malaysian Legal System (1995) DBP, page 99
Critically evaluate the defects of delegated or subsidiary legislation and the

various controls available.
(LAW431-APR2009/Sec B/Q2 20 marks)
In Malaysia, section 3 of the Interpretation Act defines subsidiary 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. In
short, subsidiary legislation is law made through powers delegated by the legislature
to a body or person via an enabling or parent statute. However, the practice of
delegating power to another body to make subsidiary legislation has several defects.
First, the delegation of powers to make the subsidiary legislation may lead to abuse
of power. The recipient of the delegated legislation will tend to be ultra vires, where it
has power beyond the framework provided by parent act.
Second, the subsidiary legislation is lack of accountability. When a power to make

subsidiary legislation is conferred to the person or body who has expertise, he will only
be accountable and responsible to the Minister and not directly accountable to the
public as he is only performing his statutory duty illustrated in the parent act.
He is also not elected by the people; therefore, it is vulnerable to abuse of power.
Third, the defect of subsidiary legislation can be seen in the problem in

understanding the subsidiary legislation. when the law is made by the person who is
an expert in that particular field, it is difficult for the lay person to understand the
language of law since it is quite technical and require advance knowledge in that
particular field.
Fourth, the subsidiary legislation is inconsistent with the doctrine of separation of

power. This is because subsidiary legislation is essentially legislation made by the
executive, and executive law-making is inconsistent with the notion of separation of

LW224
powers where only the legislature has the power to make the law and there cannot be
any interference to the power to make law.
Therefore, there are a few controls over subsidiary legislation. The first control is
the Parliament control or legislative control. The legislature which grants the delegated
powers by an enabling statute may repeal the statute or revoke or vary the delegated
powers. The legislature exercises control over subsidiary legislation through the laying
procedure. An enabling statute may require legislation made under it to be laid before
the legislature, either for the legislatures information or confirmation. Example of a
simple laying formula are to be found in section 83(3) of the Trade Marks Act 1976
(Act 175), which requires subsidiary legislation made thereunder to be laid before both
Dewan.
Further elaborated, the laying procedure for confirmation by the legislature may be by
way of negative or affirmative resolution. In the negative resolution procedure, the
subsidiary legislation is effective unless the legislature passes a resolution annulling
it. An example is contained in section 19(3) of the Control of Imported Publication Act
1958. The alternative, the affirmative resolution procedure, is more effective method
of control because the subsidiary legislation ceases to have effect until, within the
prescribed period, the legislature passes a resolution affirming it. Section 15(1) of the
Sales Tax Act 1972 bears an example.
The second control is the judicial review or judicial control. In Malaysia, the
foundations for such review lie in subsection 23(1) and 87(d) of the Interpretation Acts
1948 and 1967 which, in effect, lay down the principle that any subsidiary legislation
which is inconsistent with the Act of Parliament or State Enactment shall be void to the
extent of the inconsistency. The courts have control over subsidiary legislation through
judicial review. When in action, a defence is raised by the accused or defendant or a
challenge is made by an aggrieved person concerning the validity of the subsidiary
legislation, the courts may declare the exercise of the delegated power and the
subsidiary legislation void under the ultra vires doctrine. It can be either on the ground
of substantive ultra vires or procedural ultra vires.
For substantive ultra vires, the recipient of the delegated power has made beyond
the limits of the power conferred either in terms of the subject-matter, purposes or

LW224
circumstances authorized by the enabling statute. this is illustrated in the case of Major
Phang Yat Foo v Brigadier General Dato Yahya bin Yusof & Anor regarding the court
martial. For procedural ultra vires, the recipient of the delegated power has failed to
follow a mandatory procedure laid down in the enabling statute, for example, to give
notice to affected parties to allow them to make objections before granting planning
permission as illustrated in the case of Datin Azizah bte Abdul Ghani v DBKL where it
concerned with developing order under s 22 of the Federal Territory (Planning) Act,
granting planning permission for the building two blocks of apartments on a piece of
land in exclusive residential area.
The third control is consultation. In Malaysia, there is no general statutory provision

making prior consultation a formal requirement for the making of subsidiary legislation.
Particular enabling Acts may make prior consultation mandatory, but these are few in
number. An example is section 36(1) of the Financial Procedure Act 1957, which
authorizes the Yang di-Pertuan Agong to make regulations after consulting the
Commodities Trading Commission. Though prior consultation as a legal requirement
has not yet developed, consultation as a matter of administrative practice does not
take place on discretionary and ad hoc basis.
The fourth control is publication. There is no general statutory provision requiring

the publication of subsidiary legislation in Malaysia. It is the general practice that
subsidiary legislation is required to be published in the Gazette and will come into force
on the date of publication or on such other date as may specified. At the federal level,
subsidiary legislation is published in Malay and English in two parts of the Gazette
which is Legislative Supplement A or Legislative Supplement B.
In conclusion, even though the subsidiary legislation has contributed in this modern
government, it has several defects that we must observe carefully. The controls over
the subsidiary legislation must be uphold in order to avoid the abuse of power.

LW224
APRIL 2011 PART B Q2
In interpreting statutes, the courts are guided by four rules of interpretation and
other subsidiary rules. With reference to decided cases, explain all the relevant
rules pertaining to the matter.
Statutory interpretation is very important in the court in Malaysia. The task of judges
in statutory interpretation is to ascertain the intention of the legislature. There are a
few statutes on statutory interpretation in Malaysia such as Interpretation Acts 1948
and 1967 and Interpretation and General Clause Enactment of Sabah. The principles
evolved by the courts in England in interpreting statutes are adopted and applied with
local modifications by the Malaysian courts in interpreting local legislation. These
principles incorporate the four rules of interpretation, language rules and internal and
external aids to interpretation.
Traditionally, there are three rules of statutory interpretation. First, there is the mischief
rule. This is the oldest approach, dating from Heydons case. It was laid down in that
case that for the true interpretation of statutes, the court has to consider what was the
common law before the Act, what was the mischief and defect for which common law
did not provide a remedy, what remedy had Parliament decided upon to cure the
mischief and what was the true reason for the remedy. The rule in Heydons case was
adopted in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and Another Appeal
which concerned the interpretation of s 30 of the Industrial Relations Act 1967. That
section confers upon the Minister of Labour and Manpower the discretion whether or
not to refer an industrial dispute to the Industrial Court. The court held the interpretation
should be done by examining the position of common law and the legislative history of
the Act.
The second rule of interpretation is the Literal rule. According to the literal rule, the
words in a statute must be given their literal, plain and ordinary meaning. In the words
of Lord Esher in R v Judge of City of London Court, if the words of an Act are clear,
you must follow them, even though they lead to a manifest absurdity. The court has
nothing to do with the question whether the legislature has committed an absurdity.

LW224
This rule is illustrated in Public Prosecutor v Chin Kim Foo. In this case, the
copyright in the sound recordings of two titles, which were first published in Malaysia
on 14 and 18 July 1988 respectively was infringed on 19 July 1988. The defendant
contended that copyright only subsisted from 1 January 1989, ie the beginning of the
calendar year following the year in which the sound recordings were first published.
That submission was based on section 19 of the Copyright Act 1987 which provides
that 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.
The court accepted that submission. On a literal reading of section 19, the court
held there was no copyright until 1 January 1989. The learned judge acknowledged
that such interpretation led to an absurdity, but said the clear words of section 19 did
not allow her to reach any other conclusion. Her decision was upheld on appeal.
The third rule in statutory interpretation is the golden rule. Golden rule is a modification
of the literal approach. This approach was adopted in Leaw Mei Lee v Attorney General
& Ors, which centred on the interpretation of s 5(3) of the Advocates and Solicitor
Ordinance 1947. This section was concerned with fixing the period of local
chambering, which is prerequisite for admission to the bar as an advocate and solicitor.
Paragraph (a) determined that period by reference to any period of chambering
previously undergone in England. The proviso to that paragraph equated any such
previous chambering with the post-final course conducted either by the English
Council of Legal Education or the University of Malaya.
The issue which arose was whether the University of Malaya post-final course must
precede the local chambering, having regard to the word previously in paragraph (a).
The petitioner attended that course and chambered concurrently. Her petition for
admission was objected by the Bar Council, the Bar Committee and the Attorney
General; the objection was upheld by High Court. The Federal Court faced two
alternatives; to give a literal interpretation with the result that chambering after
completing the post-final course would qualify the petitioner for admission or an
alternative interpretation which would avoid such an absurd, or unjust result. The
Federal Court chose the latter.

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The fourth rule in statutory interpretation is the purposive approach. The term
purposive approach is relatively recent but, in concept, it is not new. It has its origin
in the mischief rule, which is the approach that requires the judges to seek and
promote, the purpose underlying the legislation. In Malaysia, the purposive approach
has received statutory recognition. Parliament has enacted s 17A of the Interpretation
Acts 1948 and 1957 that provides construction that would promote the purpose or
object underlying the Act shall be preferred to a construction that would not promote
that purpose or object.
The Federal Court applied the purposive approach in Syed Mubarak Syed
Ahmad v Majlis Peguam Malaysia where an issue concerning the legal profession
arose. The question was whether an advocate and solicitor may simultaneously
practice another profession. The appellant was a practicing public accountant. His
application to the Bar Council in 1997 for an annual certificate to practice law was
rejected on the ground that he was disqualified under section 30(1)(c), Legal
Profession Act 1976 which provides that no advocate and solicitor shall apply for a
practicing certificate if he is gainfully employed by any other persons, firm or body in a
capacity other than as an advocate and solicitor. The court used the purposive
approach and refused the applicants application. Referring to the Legal Profession
Act, the learned judge pointed out that its primary purpose is to regulate the legal
profession and it is the object of Parliament to maintain the high standards in the
profession.
There are also a few subsidiary rules such as the language rules, internal aids and
external aids that is used for statutory interpretation. First, one of the subsidiary rules
is the language rules. There are several language rules. One of it is Noscitur a Sociis,
which means a word derives its meaning from its context. For example, in Sykt
Perniagaan United Aces Sdn Bhd & Ors v Majlis Perbandaran Petaling Jaya, it was
held that the term parking place must be associated with the words which
accompanied it, ie open space, garden, recreation and pleasure ground all of
which refer to places for pleasure and recreation and not a thoroughfare; thus parking
place was not analogous to street.

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The second subsidiary rule is internal aids. Internal aids are parts of the statute
itself. They may be used as aids in interpretation. For instance, the short title. The
High Court ruled in PP v Chief Executive Secretary that the short title is part of the
legislation and can be used as an aid in interpretation. In that case, Smith J referred
to the short title of the Motor Vehicles Commercial Use Regulations in deciding that
the Regulations controlled motor vehicles when used commercially only, not when
used privately.
The third subsidiary rule is the external aids. External aids are materials outside
the statute. examples of external aids are dictionaries; interpretation statutes; previous
and subsequent statutes on the same subject-matter; and judicial decisions
interpreting statutes in pari materia.
In conclusion, there are various rules that are used by judges to interpret the
statutes. By the virtue of the statutory interpretation, they are able to ascertain the
intention of the legislature.

LW224
DEC 2013 PART B Q2
In interpreting statutes, the courts are guided by various rules of interpretation.
With reference to decided cases, explain the primary rules of interpretation and
analyse the strengths and weaknesses of these rules.
The literal rule

Parliamentary supremacy is Absurd results
respected Unjust results LNER v Berriman
Judges given a restricted role Law (1946)
making left to those who are Does not always give effect to the
elected for law making intention of parliament they
Application of literal rule can would not want absurd results

highlight to parliament problems Where a dictionary definition gives

with an act Fisher v Bell
invitation to treat now treated in the two meanings, the literal rule will
same way as offers for sale not work
Requires the assumption that

draftsmen will always do their job
perfectly.
The Golden Rule

Prevents absurd and unjust No clear definition of what amounts
results Re Sigsworth to an absurd result therefore
More likely than the literal rule to unpredictable
have produced a result intended by
Makes it difficult for lawyers to
parliamant advise clients whether or not to
pursue a case
Too much power given to judges

Michael Zander calls it a feeble
parachute

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The mischief rule

Avoids absurd and unjust outcomes Too much power to an unelected
McMonagle judiciary
Promotes flexibility Is it the job of a judge to update
How parliament intended it smith legislation? Abortion Act 1967
v hughes Can be hard to discover the
Law Commission calls it a rather original mischief search old law

more satisfactory approach Difficult to identify precise intention
preferred approach of parliament
Out of date 16th century
The purposive approach

Consistent with EU approach Too much power to unelected jury
Gives effect to parliaments Judicial decisions based on policy
intentions Fitzpatrick v Sterling Housing
Denning states that it is Association
preferable to destructive analysis

Avoids absurd and unjust results
Flexible
Parliament's intention

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PART C (30 MARKS)

Encik Muthu is the owner of a supermarket in Shah Alam. Due to an increase in
business and ailing health, he was advise by his children to employ an assistant.
Encik Muthu thus placed a notice in his shop. The notice read as follows:
Full-time assistant manager urgently required. Working hours: 9 am 6 pm,

Weekdays only. Monthly salary RM 1800.00
Malek read the notice and applied for the job. A few days after the interview, he was
informed that his application was successful. Unfortunately, after working in the
supermarket for six months, Malek was not paid.
A few days ago, Samy, aged 16, was caught by Malek for stealing his Blackberry
handphone. Malek handed him over to a police officer.
Consider the following separately:
a) Malek now wants to take legal action in the civil court against Encik Muthu for
breach of contract.
Advise him on the following matters:
i. Identify the relevant court that will hear the case.
Discuss the composition and jurisdiction of the court.
(10 marks)
ii. Should Maleks claim was unsuccessful at the first instance court, state
the composition and jurisdiction of the appeal court. Explain also the
functions of an appellate court.
(10 marks)
b) Samy was subsequently charged for theft.

State the jurisdictions of the court that will hear Samys case. Discuss the
special features of the court that distinguish it from other courts.
(10 marks)

LW224
a) Malek now wants to take legal action in the civil court against Encik Muthu
for breach of contract.
i) Identify the relevant court that will hear the case. Discuss the
composition and jurisdiction of the court.
(10 marks)
Based on Maleks situation, the Magistrates court will hear the case.
The Magistrates Court is established under Section 76 Subordinate Court Act

(SCA) 1948. They may be presided by over by first or second class magistrates. A
Magistrates Court is deemed to be the court of a first class magistrate and has all the
powers and jurisdiction conferred on a first class magistrate by the SCA 1948 or any
other written law. However, a second class magistrate cannot adjudicate a matter
which is not within the jurisdiction conferred upon him or her.
The Magistrates Court have general jurisdiction to try civil and criminal cases within
the local limits of jurisdiction assigned to them, or of no such local limits have been
assigned, arising in any part of the local jurisdiction of the respective High Court. In
addition, they may issue summons, writs, warrants or other process, and make any
interlocutory or interim orders, including orders concerning adjournment, remand, and
bail. The Magistrates Courts also have specific jurisdiction. This depends on the
status of the magistrate.
A first class magistrate has original jurisdiction, may be over civil or criminal action.
For criminal matters, under Section 85, the first class magistrate shall have jurisdiction
to try all offences punishable with up to 10 years imprisonment or with fine only and
offences under Sections 392 and 457 of the Penal Code. Section 392 concerns
robbery and Section 457 deals with lurking, house trespass, or housebreaking by night
in order to commit an offence punishable with imprisonment.
The maximum punishment for these offences is 14 years imprisonment. For civil,
under Section 90 SCA 1948, a first class magistrate has jurisdiction to try all civil
actions where the amount in dispute or value of the subject-matter does not exceed
RM 100,000. Nevertheless, such a magistrate may exercise jurisdiction in actions
involving an amount or value exceeding RM 100,000 if both parties agree in writing.

LW224
Besides that, according to Section 83 (a), any magistrate of either class can issue any
summons, writ, warrant or other process.
A second class magistrate also has original jurisdiction. Under Section 88 SCA
1948, the criminal jurisdiction of a second class magistrate is to try offences for which
the maximum penalty is 12 months imprisonment or which are punishable with a fine
only. If the magistrate thinks that the accused, if convicted, deserves a penalty which
exceeds his or her powers of punishment, the case must be adjourned for trial by a
first class magistrate. For civil matters, under Section 92 SCA 1948, a second class
magistrate has jurisdiction to try actions of civil nature where the plaintiff seeks to
recover a debt or liquidated demand in money not exceeding RM 10,000, payable by
defendant.
Thus, based on Maleks situation, his case should be heard in a magistrate court by
the first class magistrate as her claim was for 6 months payment which is RM 10,800.

LW224
ii) Should Maleks claim was unsuccessful at the first instance court, state
the composition and jurisdiction of the appeal court. Explain also the
functions of an appellate court.
(10 marks)
The function of the appellate court is to hear appeals from subordinate courts
in both civil and criminal matters. It can also hear appeals from quasi-judicial bodies if
so authorized by law. When Maleks claim be unsuccessful at the first instance court
which is Magistrate Court, Malek should appeal to the High Court. Appeals against
decisions of the Magistrates Courts in both civil and criminal matters lie to the High
Court.
There are two High Courts of equal jurisdiction and status, namely the High Court in
Malaya and High Court in Sabah and Sarawak. They are constituted under Article
121(1) and their jurisdiction and powers are conferred by federal law. Each High Court
tries only cases that arise from its own territory, but the parties consent in writing, the
court may try cases from the territory of the other High Court. The local jurisdiction of
the High Court is defined in Section 3 CJA 1964 and s 2(1) SCA 1948. Each High
Court consists of a Chief Judge and not fewer than four other judges. Article 122AA
provides that the number of other judges shall not exceed 60 in the High Court in
Malaya and 13 in the High Court in Sabah and Sarawak. A judicial commissioner may
be appointed and has the same powers and enjoy the same immunities as a judge of
High Court.
The High Court has the following jurisdictions; original, appellate, revisionary
and supervisory. For the original jurisdiction, the High Court has unlimited jurisdiction
in both civil and criminal matters. It can try any civil case of any value or any criminal
case, no matter how grave. However, the High Court normally tries only cases outside
the jurisdiction of the subordinate courts. The general civil jurisdiction of the High Court
is set out in Section 23 CJA 1964. The High Court has jurisdiction to try all civil matters
where the value of subject matter exceeding RM 1 million. Besides that, the High Court
has specific jurisdiction in matters enumerated in Section 24 CJA 1964. Such
jurisdiction includes; divorce and matrimonial causes, admiralty matters, bankruptcy

LW224
and companies and appointment and control of guardians and keepers of the infants
and generally over the persons and property of the infants.
On the other hand, in the criminal matters, the general rule is that the High Court
has jurisdiction over people (citizens and non-citizens) and offences committed within
its territory. This is set out in Section 22(1)(a) CJA 1964. Thus, the High Court in
Malaya tries only offences committed in Peninsular Malaysia and its counterpart in
Sabah and Sarawak, only offences committed in East Malaysia. However, there is
exception to the general rule, where the High Court has the extraterritorial jurisdiction
set in Section 22(1) CJA 1964. The High Court may try the offences such as on the
high seas on board any ship or any aircraft registered in Malaysia; by any citizen or
any permanent resident on the high seas on board any ship or on any aircraft and by
any person on the high seas where the offence is piracy by the law of nations. There
also other statutory provision that confer extraterritorial jurisdiction for High Court such
as Penal Code and Prevention of Corruption Act 1961. The extraterritorial jurisdiction
of the High Court is, however, extended by section 22(1)(b) CJA 1964.
For the appellate jurisdiction, a High Court hears appeals from subordinate
court in both civil and criminal matters. It can also hear appeals from quasi-judicial
bodies if so authorized by law. In civil matters, the appellate jurisdiction of the High
Court is laid down in Section 27 CJA 1964. There is no appeal to the High Court from
the decision of a subordinate court in any civil cause or matter where the amount in
dispute or the value of the subject-matter is less than RM 10000, except on a question
of law. This monetary limit, however, does not apply to decisions of a subordinate court
in proceeding concerning maintenance of wives or children.
On the other hand, for the criminal matters, under Section 26 CJA 1964, the
High Court can hear appeals from subordinate courts according to any law then in
force within the territorial jurisdiction of the High Court. Section 304-306 of the Criminal
Procedure Code, however, impose some restrictions on appeals to the High Court. No
appeal can be made to the High Court from a subordinate court concerning any offence
punishable with fine only not exceeding RM 25. A person who has pleaded guilty and
has been convicted cannot appeal, except as to the extent or legality of the sentence.

LW224
Finally, there is no appeal against an acquittal except by, or with the written sanction
of, the Public Prosecutor.
For the revisionary jurisdiction, the High Court has revisionary jurisdiction over
criminal and civil proceedings in subordinate courts in accordance with any law for the
time being in force concerning criminal procedure. Section 32 gives it power to call for
and examine the record of any civil proceedings before any subordinate court to satisfy
itself as to the correctness, legality or propriety of any decision recorded or passed,
and as to the regularity of any proceedings of any such subordinate court.
Section 35 CJA 1964 provides that High Court shall have general supervisory
and revisionary jurisdiction over all subordinate courts. The section empowers the High
Court, in the interest of justice, either of its own motion or at the instance of any
interested party, to call for the record of any proceeding, whether civil or criminal, at
any stage of such proceeding, and either transfer to the same High Court, or give to
the subordinate court directions for the further conduct of the case. Thus, it would
appear that the High Courts revisionary and supervisory jurisdiction overlaps.
The High Court also has jurisdiction to review decisions of quasi-judicial bodies
or administrative tribunals. This is provided that by Section 25(2) CJA 1964 read
together with Section 1 of the Schedule to the Act. These confer power on the High
Court to issue orders or writs including writs of the nature of habeas corpus,
mandamus, prohibition, quo-warranto and certiori.
Thus, based on the above explanation, Malek can make an appeal to the High
Court if he was unable to succeed at the first instance court, where his value of claim
is RM10,800.

LW224
b) Samy was subsequently charged for theft.
State the jurisdictions of the court that will hear Samys case. Discuss the
special features of the court that distinguish it from other courts.
(10 marks)
There are courts of special jurisdiction for certain cases, which are the Special
Cort and the Court For Children. The court that will hear Samys case is the Court For
Children.
Court for Children (CFC) were established by the Child Act 2001 (Act 611)(CA
2001). The Court for Children replaced Juvenile Courts set up under the Juvenile
Courts Act 1947 (Act 90), one of the statutes repealed by the CA 2001. CFC was set
up with the paramount aim of protecting the interests of the children who appear before
them. Thus, Child Act 2001 provides measures that are intended to take children away
from the adult criminal justice system and to protect them from publicity. A Court for
Children has jurisdiction over offenders between the age of 10 years old and under 18
years old.
According to Section 11 of the Child Act, a Court for Children comprises a

magistrate who must be assisted by two advisers, one of whom must a woman. The
advisers are appointed by the responsible Minister from a panel of persons resident in
the state or territory concerned. The presence of the two advisers is crucial. The
absence of either one or both renders the proceedings unlawful. The Magistrate
decides the case and the function of the advisers is limited. The advisers have to
advise the court concerning any consideration affecting the order to be made upon a
finding of guilt or other related treatment of the child offender and, if necessary, to
advise the parent or guardian of such child.
A Court for Children has the jurisdiction to try all offences by child defenders,
except those punishable with death. Except as modified or extended by the Child Act
2001, the Criminal Procedure Code applies to CFC as if such courts were
Magistrate Courts. The Child Act 2001 prohibits the words conviction and sentence
from being in relation to a child offender found guilty. A finding of guilt and order
made upon finding of guilt are used instead.

LW224
When an offence has been proved the CFC must consider a probation report;
and seek the opinion of each advisers before deciding on the order to be imposed. It
must contain information concerning the childs general conduct, home surroundings,
school record and medical history to enable the court to act in the childs best interest.
The opinion of both advisers must be recorded and considered. The court is not bound
to accept the opinion of either or both but must record its reason for dissenting.
There several orders the court may impose upon a finding of guilt. The more
severe of these include sending the child to an approval institution such as the Henry
Gurney School.; whipping with not more than ten strokes of a light cane (but only if the
offender is a male); and any term of imprisonment which could be awarded by
Sessions Court if the offender is aged fourteen years and above and the offence is
punishable with imprisonment.
Under Section 97(1) CA 2001, the CFC may not pronounce or record a
sentence against a child found guilty of an offence. In lieu of a sentence of death,
subsection (2) of the same provision requires the court to sentence the child to be
detained in prison during the pleasure of the Yang di-Pertuan Agong or Ruler or Yang
di-Pertua Negeri, as the case may be, depending on the venue of the offence. The
Public Prosecutor, any child or his parent or guardian, aggrieved by any finding or
order of a CFC, may appeal to the High Court in accordance with the provisions set
out in the Criminal Procedure Court concerning criminal appeals to the High Court from
a Magistrstes Court.
There are few special features for Court for Children. This philosophy of creating
a special court is that children need care and attention and offenders should be treated
differently from adult ones and with compassion so that they do not grow up to be
criminal. Section 58 of the Child Act stated the place for detention. A child offender
who is arrested and is not released on bail pending trial before a CFC must be detained
in a place designated under the Child Act 2001 which may include accommodation in
a police station, cell or lock-up, separate from adult offenders.
According to Section 12 of the Child Act, so long as it is practicable, the Court

for Children sits in building or rooms different from that in which sittings of ordinary
court are held. Proceedings in a CFC are not open to public. The only persons

LW224
permitted to be present at any sitting of such court are court members and officers; the
children who are parties to the case in question, their parents, guardians, advocates,
and witnesses and other persons directly involved in the case; and such other persons
as may be determined by the court.
Besides that, according to Section 15(1), unless authorized, media reporting

CFC proceedings must not reveal any particulars that may lead to the identification of
any child (whether offender or witness) concerned in those proceedings. In addition, if
the offender is found guilty, the Court does not use terms such as convict or
sentence. A finding of guilt and order made upon finding of guilt are used instead.
Hence, based on the above explanation, the court that will hear Samys case is
the Court for Children.

LW224
QUESTIONS:
Rosey answered an advertisement in a national newspaper for the post of a personal

assistant to a famous novelist, Kelly Moon. After an interview, she was offered the
post. The employment contract stated that she would be paid RM 3,000.00 monthly.
Kelly also informed her that she might be required to work late occasionally.
After working for six months, Rosey was still not paid. She has also been asked to
work late at least twice a week.
Rosey now want to take legal action in the civil courts against her employer for breach
of contract.
As Roseys legal advisor, advise her on the following matters:
1. Identify the relevant court that will hear the case. State the jurisdiction and
composition of the court. (10M)
2. Explain the function of an appellate court, should her claim be unsuccessful at
the first instance court. State the jurisdictions and compositions of the relevant
court. (10M)
3. In reaching its decision, a court will refer to various sources of law. Discuss the
relevant sources of law that the court will refer to in Roseys case. (10M).
Answer:
Questions 1
Based on Roseys situation, the Magistrates court will hear the case.
The Magistrates Court are established under s 76 Subordinate Court Act (SCA) 1948.
They may be presided by over by first or second class magistrates. A Magistrates
Court is deemed to be the court of a first class magistrate and has all the powers and
jurisdiction conferred on a first class magistrate by the SCA 1948 or any other written
law. However, a second class magistrate cannot adjudicate a matter which is not within
the jurisdiction conferred upon him or her.
The Magistrates Court have general jurisdiction to try civil and criminal cases within
the local limits of jurisdiction assigned to them, or of no such local limits have been

LW224
assigned, arising in any part of the local jurisdiction of the respective High Court. The
Magistrates Courts also have specific jurisdiction. This depends on the status of the
magistrate.
A first class magistrate has original jurisdiction, may be over civil or criminal action.
For criminal matters, under s 85, the first class magistrate shall have jurisdiction to try
all offences punishable with up to 10 years imprisonment or with fine only and offences
under sections 392 and 457 of the Penal Code. Section 392 concerns robbery and s
457 deals with lurking, house trespass, or housebreaking by night in order to commit
an offence punishable with imprisonment. The maximum punishment for these
offences is 14 years imprisonment. For civil, under s 90 SCA 1948, a first class
magistrate has jurisdiction to try all civil actions where the amount in dispute or value
of the subject-matter does not exceed RM 100,000. Nevertheless, such a magistrate
may exercise jurisdiction in actions involving an amount or value exceeding RM
100,000 if both parties agree in writing. Besides that, according to s 83 (a), any
magistrate of either class can issue any summons, writ, warrant or other process.
A second class magistrate also has original jurisdiction. Under s 88 SCA 1948,
the criminal jurisdiction of a second class magistrate is to try offences for which the
maximum penalty is 12 months imprisonment or which are punishable with a fine only.
For civil matters, under s 92 SCA 1948, a second class magistrate has jurisdiction to
try actions of civil nature where the plaintiff seeks to recover a debt or liquidated
demand in money not exceeding RM 100,000, payable by defendant.
Thus, based on Roseys situation, her case should be heard in a magistrate court by
the first class magistrate as her claim was for 6 months payment which is RM 18,000.

LW224
Question 2
The function of the appellate court is to hear appeals from subordinate courts
in both civil and criminal matters. It can also hear appeals from quasi-judicial bodies if
so authorized by law. When Roseys claim be unsuccessful at the first instance court
which is Magistrate Court, Rosey should appeal to the High Court. Appeals against
decisions of the Magistrates Courts in both civil and criminal matters lie to the High
Court.
There are two High Courts of equal jurisdiction and status, namely the High Court in
Malaya and High Court in Sabah and Sarawak. They are constituted under Article
121(1) and their jurisdiction and powers are conferred by federal law. Each High Court
tries only cases that arise from its own territory, but the parties consent in writing, the
court may try cases from the territory of the other High Court. The local jurisdiction of
the High Court is defined in s 3 CJA 1964 and s 2(1) SCA 1948. Each High Court
consists of a Chief Judge and not fewer than four other judges. Article 122AA provides
that the number of other judges shall not exceed 60 in the High Court in Malaya and
13 in the High Court in Sabah and Sarawak. A judicial commissioner may be appointed
and has the same powers and enjoy the same immunities as a judge of High Court.
The High Court has the following jurisdictions; original, appellate, revisionary
and supervisory. For the original jurisdiction, the High Court has unlimited jurisdiction
in both civil and criminal matters. It can try any civil case of any value or any criminal
case, no matter how grave. However, the High Court normally tries only cases outside
the jurisdiction of the subordinate courts. The general civil jurisdiction of the High Court
is set out in s 23 CJA 1964. The High Court has jurisdiction to try all civil matters,
regardless of value. Besides that, the High Court has specific jurisdiction in matters
enumerated in s 24 CJA 1964. Such jurisdiction includes divorce and matrimonial
causes; admiralty matters and bankruptcy and companies.
On the other hand, in the criminal matters, the general rule is that the High Court
has jurisdiction over people (citizens and non-citizens) and offences committed within
its territory. This is set out in s 22(1)(a) CJA 1964. Thus, the High Court in Malaya tries
only offences committed in Peninsular Malaysia and its counterpart in

LW224
Sabah and Sarawak, only offences committed in East Malaysia. However, there is
exception to the general rule, where the High Court has the extraterritorial jurisdiction
set in s 22(1) CJA 1964.
For the appellate jurisdiction, a High Court hears appeals from subordinate
court in both civil and criminal matters. It can also hear appeals from quasi-judicial
bodies if so authorized by law. In civil matters, the appellate jurisdiction of the High
Court is laid down in s 27 CJA 1964. There is no appeal to the High Court from the
decision of a subordinate court in any civil cause or matter where the amount in dispute
or the value of the subject-matter is less than RM 10000, except on a question of law.
This monetary limit, however, does not apply to decisions of a subordinate court in
proceeding concerning maintenance of wives or children.
On the other hand, for the criminal matters, under s 26 CJA 1964, the High
Court can hear appeals from subordinate courts according to any law then in force
within the territorial jurisdiction of the High Court. Section 304-306 of the Criminal
Procedure Code, however, impose some restrictions on appeals to the High Court. No
appeal can be made to the High Court from a subordinate court concerning any offence
punishable with fine only not exceeding RM 25. A person who has pleaded guilty and
has been convicted cannot appeal, except as to the extent or legality of the sentence.
Finally, there is no appeal against an acquittal except by, or with the written sanction
of, the Public Prosecutor.
For the revisionary jurisdiction, the High Court has revisionary jurisdiction over
criminal and civil proceedings in subordinate courts in accordance with any law for the
time being in force concerning criminal procedure. S 32 gives it power to call for and
examine the record of any civil proceedings before any subordinate court to satisfy
itself as to the correctness, legality or propriety of any decision recorded or passed,
and as to the regularity of any proceedings of any such subordinate court.
Section 35 CJA 1964 provides that High Court shall have general supervisory
and revisionary jurisdiction over all subordinate courts. The section empowers the High
Court, in the interest of justice, either of its own motion or at the instance of any
interested party, to call for the record of any proceeding, whether civil or criminal, at
any stage of such proceeding, and either transfer to the same High Court, or give to

LW224
the subordinate court directions for the further conduct of the case. Thus, it would
appear that the High Courts revisionary and supervisory jurisdiction overlaps.
The High Court also has jurisdiction to review decisions of quasi-judicial bodies
or administrative tribunals. This is provided that by s 25(2) CJA 1964 read together
with s 1 of the Schedule to the Act. These confer power on the High Court to issue
orders or writs including writs of the nature of habeas corpus, mandamus, prohibition,
quo-warranto and certiori.
Thus, based on the above explanation, Rosey can make an appeal to the High
Court if she was unable to succeed at the first instance court.

LW224
Question 3
In reaching its decision, a court will refer to various sources of law. There a few
relevant sources of law that the court will refer to be in Roseys case. Generally, source
of law is divided into two, which are written law and unwritten law. Written law is the
law embodied in the constitution and passed by the parliament. Unwritten law is not
codified by the constitution but to date, has legal effect to our federation.
For the written law, legislation is used in this case. Legislation is the law made
by the person or body who has the powers to enact the law, which is the Parliament
and State Legislative Assembly. The laws made by Parliament, known as Act, extent
throughout the country while the laws made by State Legislative Assembly, known as
Enactment, only apply to that particular state. Ordinance is also one of the important
legislation. Ordinance is the law made by the YDPA during a proclamation of
Emergency, law enacted by Sarawak state legislative assembly and law enacted by
Parliament between 1 April 1946 to 10 September 1959. Based on Roseys situation,
it was concerning the breach of contract by the employer. Therefore, legislation used
here is the Contract Act 1950.
For the unwritten law, one important source that can be used is the judicial
decisions. The judicial decision or doctrine of stare decisis means that in cases where
the material facts is the same, a court must follow the prior decisions of a higher court
and in the case of the same courts its own prior decisions and prior decisions of a court
of the same level whether past or present in the same hierarchy. This doctrine has a
two-way operation, which are vertical and horizontal operation. For vertical operation,
a court is bound by the prior decisions of a higher court. While for the horizontal
operation, some courts are bound by their own prior decisions and prior decisions of a
court of the same level. For example, in Roseys situation, the judge may refer to the
earlier cases on breach of contract which has the same facts and therefore apply the
ratio decidendi to the case.
Besides that, English Law is one of the sources of law that can be used.
Under section 3 of the Civil Law Act 1956, English Law means the the common law
of England and the rules of equity and in prescribed circumstances, English statutes.
Section 3(1) provides for the general application of English law. However, it was

LW224
subject to the absence of local legislation, cut-off dates, suitability to local

circumstances and wording or type of law. Subject to this four provisions, English law
can be used to fill the lacunae in the law of our country.

Sources of Law in Malacca Sultanate

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