MID TERM TEST

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Time: 2-3.30pm, 8/6/2021, Tues

Name: LIU YU

ID:1001057208

Questions

1. What is rule of law as stipulated by Prof AV Dicey? Why is it

important? (10 marks)
Dicey's first principle of the rule of law was that 'no man is punishable or can be lawfully made to
suffer in body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land. In this sense the rule of law is contrasted with every system
of government based on the exercise by persons in authority of wide, arbitrary, or discretionary
powers of constraint'.

The first sentence requires that laws under which people are condemned should be passed in the
correct legal manner and that guilt should only be established through the ordinary trial process.
This is an important principle, although it should be noted that nothing here speaks to the content of
the laws which an individual will have to face when taken before the courts. The meaning of the
second sentence is more problematic. The word 'arbitrary' could connote a clear law, which was
properly enacted by Parliament, but which might nonetheless be regarded as arbitrary if it was
thought to infringe certain fundamental rights, or if it entailed excessive punishment. The word
'arbitrary' could alternatively be used to describe a law passed in the correct legal manner, but
where it was very vague or unclear, with the result that individuals had no real idea how to plan
their lives in the light of the relevant legal rule. This sense of arbitrariness is independent of whether
the content of the legislation was just or unjust.

Dicey's second principle of the rule of law concerns equality: 'every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals'.

This formulation is concerned primarily with equal access to the courts, not with the nature of the
rules which individuals find when they get there. It is true that Dicey was explicitly against officials
being accorded any special privileges, but beyond this Dicey's second principle does not take one
very far. He showed little concern with the role of law in deciding whether different rules applicable
to different groups were defensible on the ground that that there was some rational justification for
the difference in treatment.

Dicey's third principle was that the unwritten constitution in the UK could be said to be pervaded
by the rule of law because rights to personal liberty, or public meeting resulted from judicial
decisions, whereas under many foreign constitutions such rights flowed from a written constitution.

This third limb of the rule of law is ambiguous. It might be read to mean that a society must possess
certain individual rights if it is to conform to the rule of law. The alternative reading was that if you
wished to protect such rights then the common law technique was better than that employed on the
continent. Dicey dealt in detail with the precarious protection of rights on the continent, where
constitutions enshrining rights would often be abrogated at the stroke of the pen or the point of a
sword. He felt that in the UK, where individual rights were the result of numerous judicial decisions
indicating when the individual was at liberty to speak freely etc, it would be considerably more
difficult for an authoritarian regime to sweep these rights aside.

he statutory affirmation of the rule of law as an existing constitutional principle and of the Lord
Chancellor's existing role in relation to it does have an important consequence: that the judges, in
their role as journeymen and judgment-makers, are not free to dismiss the rule of law as
meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were
inclined to do so. They would be bound to construe a statute so that it did not infringe an existing
constitutional principle, if it were reasonably possible to do so. And the Lord Chancellor's conduct in
relation to that principle would no doubt be susceptible, in principle, to judicial review.

2. When hearing cases, the courts are not just performing an act of fact
finding, they also interpret statutes, although they do not make them.
Discuss statutory interpretation. (10 marks)
Usually, the interpretation of the statute is done by the judges, it is the primary function of the
judge as a judicial head. As we all know that our government is divided into three important wings
which are: Legislature, Executive and Judiciary. Here legislature lays down the law and intends
people to act according to the legislature and the judiciary that is judges will come up with the
proper meaning of the law and puts the law into operation. This helps in maintaining checks and
balances between the wings.

Literal Rule
The literal rule basically looks into what the law says, not what the law means. It considers the
original meaning of the word. Here judges cannot come up with the words and interpret according
to the case basis. When the language used is simple and the words have only one meaning to it at
that time judges will use this literal rule of interpretation.

When there are no two meanings to a word. This rule helps courts from taking sides in legislative or
political issues. If any word in the statute has a special meaning to it, usually it will be mentioned in
the interpretation clause, all technical words are given ordinary meaning if the statute has not
specified it. Usage of the appropriate words is very important and makes a lot of difference in the
meaning of the context.

Courts should never go beyond the intention of the legislators. When the words of the statute are in
themselves precise and unambiguous, then there is no need of explaining that in the natural or
ordinary sense.

R v. Harriss, 1836

The defendant bit off the victim’s nose. The statute says it is offence ‘to stab cut or wound’ a person.
Here the court applied the literal rule, the act of biting did not come within the meaning of stab cut
or wound as these words implied an instrument had to be used. Therefore the defendant’s
conviction was quashed.

Golden Rule
The Golden rule is also called as British rule of interpretation, it is a form of statutory interpretation
which allows a judge to depart from a normal meaning of the word in order to avoid an absurd
result. As we know applying the bare letter of law sometimes may lead us to confusion and gives us
an absurd result, in order to overcome these kinds of results judges will give an opportunity to the
lawyer to come up with the new interpretation to the law which will be more certain and accurate to
the case.

This method of interpretation is also known as the compromise method between literal rule and the
mischief rule. In the literal rule, judges will only use the word meaning nothing else, but sometimes
this may be irrational and gives us unexpected results which will be unlikely to the legislator’s
intention.

In the case of homographs, where a word can have more than one meaning, the judge can choose
the meaning which is suitable at that particular case if the word only has only one meaning, but
applying that would lead to a bad decision where the judge can apply that decision and arrive at a
completely different meaning.

This rule is used in two main situations:

When the meaning of the word is too narrow.

When the word itself has ambiguity or absurdity.

For example:

Whenever you stand near the lift it will be written that ‘’Do not use lifts in case of fire.’’ if you
consider it in a literal meaning you should never use the lifts, this would be an absurd result because
the intention of the person who put the sign is to prevent using of lift when there is live fire burning
anywhere near the lift.

When a son murdered his mother and committed suicide, now the court has to decide who will
inherit the property is its mother’s family or the son’s descendants. The judgment came out in
favour of the mother’s family, here what we have observed here is son never had the intention of
making a profit by his crime, but now this judgment will be binding on all the lower courts.

Adler v George case, 1964

Under section 3 of the‘official secrets act,1920’it was an offence to obstruct HM Forces in the vicinity
of a prohibited area. Adler was arrested for obstructing forces whilst in a prohibited area. Under The
Literal Rule, Adler was not in the vicinity of the area, he was in the area and so was not infringing the
terms of the act. The Golden Rule was applied to extend the meaning of ‘vicinity’ and avoid the
possible absurd outcome.

Mischief Rule

The mischief rule is a kind of statutory interpretation where it attempts to determine the intention
of the legislators. It basically originated in the 16th century by the Heydon’s case in the united
kingdom, the main objective of this is to find out the mischief and defect of the previous statute
which was in question and how the new statute will come up with the remedy that resolves the
defect.

The main purpose of bringing the amendments in the statute is to add on additional areas or to
make certain changes in the existing law and make it wider where it covers many other
circumstances. Legislating a new law is to resolve the problem which was unable to resolve through
the other laws which were existing before. And this also helps in finding out the answers to those
questions which were not answered in the previous law. So here we can observe the retrospective
effect in the process of making laws.

This rule is also called as purposive construction as there is a purpose behind making this ruling.
Here court attempts to know the intention of the legislators for bringing in the change in the law. It
also tries to analyze the mischief and the defect which was present in the previous law which leads
to the creation of the new law.
Heydon’s Case

This case helps us to know the 4 important points which we have to keep in mind while statute
interpretation.

What was the common law before the making of the act?

What was the mischief or defect which the common law did not provide?

What remedy the Parliament had resolved by appointing to cure the disease of the commonwealth?

What is the true reason behind the remedy?[9]

Thomas v. Lord Clan Morris

Here it was stated that interpretation of any statutory enactment should not only restrict them to
the interpretation of words and phrases used, but they should also look at the history of the act and
the reasons behind passing such acts.

Elliot V. Grey, 1960

According to the Road Traffic Act of 1930 uninsured cars are not allowed to be driven or parked on
the road. The defendant’s car was parked on the road near the public place but he was not using it.

The defendant was held guilty because the parliament has passed a bill which states that people
should insure their car only then they can drive the car.

The mischief rule was applied by the court by stating that the car being used in the road if in case the
car causes an accident, insurance would be required. The reason behind this was that people should
be compensated when they are injured by such incidents and danger caused to them by others.

Advantages:

Law commission finds mischief rule more efficient as it opposed to Literal and Golden rule.

It avoids unjust and absurd results in sentencing.

Disadvantages:

It is considered as an outdated rule as it came into the picture in the 16th century.

Gives excess power to the judiciary who are unelected and it is considered undemocratic.
This makes the law uncertain.

In the 16th century, the kings used to give judiciary complete power to draft laws so at that time
they were well qualified about the mischief acts.

3. What is the jurisdiction of High Court of Malaysia? (10 marks)

"Law" can be defined as "a set of rules governing people's interactions with each other, which
stipulates the standards of conduct between individuals and between individuals and the
government, and can be enforced through sanctions." According to 1957 Federal Constitution No.
160 (2) Article, "Law" is defined as statutory law, common law, and any custom that is sufficiently
enforceable in the Federation or any part of it. Federal or any local law. The main purpose of the law
is to ensure fairness and equality in society. In other words, the main purpose of the law is to
maintain social justice.

The High Court of Malaysia, as one of the high courts in the judicial hierarchy of the Malaysian
judicial system, ranks third. Each high court appoints two chief judges. According to Article 2 of the
Judicial Courts Act of 1964, the High Court is mainly composed of the Malayan High Court and the
Sabah and Sarah High Courts. The High Court of Malaya is both the court of first instance and the
court of appeal.

The Malay High Court has supervision and amendment jurisdiction over all lower courts. Generally,
the cases heard by the High Court of Malaya are cases in which the magistrate and the conference
court have no jurisdiction. The jurisdiction of the Malayan High Court can be divided into two
categories. They are primitive criminal jurisdiction and civil jurisdiction. In addition, the Malayan
High Court in Kuala Lumpur is divided into four parts: the Commercial Department, the Appeal and
Special Powers Department, the Civil Department and the Criminal Department.

Federal Court

The Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil
decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court
also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the
High Court in its original jurisdiction (i.e. where the case has not been appealed from the
Subordinate Courts).

Court of Appeal

The Court of Appeal generally hears all civil appeals against decisions of the High Courts except
where against judgment or orders made by consent. In cases where the claim is less than
RM250,000, the judgment or order relates to costs only, and the appeal is against a decision of a
judge in chambers on an interpleader summons on undisputed facts, the leave of the Court of
Appeal must first be obtained. The Court of Appeal also hears appeals of criminal decisions of the
High Court. It is the court of final jurisdiction for cases which began in any subordinate courts.

High Courts
The two High Courts in Malaysia have general supervisory and revisionary jurisdiction over all the
Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and
criminal matters.
The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds
RM1,000,000, other than actions involving motor vehicle accidents, landlord and tenant disputes
and distress. The High Courts hear all matters relating to:

the validity or dissolution of marriage (divorce) and matrimonial causes,

bankruptcy and matters relating to the winding-up of companies,

guardianship or custody of children,

grants of probate, wills and letters of administration of estates,

injunctions, specific performance or rescissions of contracts,

legitimacy of persons.

The High Courts have unlimited jurisdiction in all criminal matters other than matters
involving Islamic law. The High Courts have original jurisdiction in criminal cases punishable by
death.

Cases are heard by a single judge in the High Court, or by a judicial commissioner. While High Court
judges enjoy security of tenure, judicial commissioners are appointed for a term of two years, and do
not enjoy similar protection under the Constitution.

An application for a judicial review is applied in this court.

Our court system is complex and sometimes confusing because it has been developed for more than
1,000 years, rather than being designed from scratch.

Different types of cases are handled in specific courts: for example, all criminal cases will start in the
district court, but more serious criminal cases will be submitted (or sent) to the subordinate courts.
Appeals from subordinate courts will be submitted to the High Court, and may be submitted to the
Court of Appeal or even the Supreme Court.

Civil cases are sometimes handled by magistrates, but they are likely to be handled by county courts.
Likewise, the appeal will go to the High Court first and then to the Court of Appeals-despite the
different branches of these courts.

The court system has its own structure for handling cases and appeals, but the decisions of different
chambers of the higher courts and the Employment Appeal Tribunal may also be submitted to the
Court of Appeal.
ENDS.