Bdau2103 Elements of Law 9

FACULTY OF BUSINESS AND MANAGEMENT
SEPTEMBER SEMESTER 2022

BDAU2103
ELEMENTS OF LAW
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1
Contents
1.0 The Sources of Malaysia Law...........................................................................................3
1.1 Identification and Evaluation on the First Source............................................................5
1.2 Identification and Evaluation on the Second Source........................................................7
1.3 Identification and Evaluation on the Third Source...........................................................9
2.0 The Rules of Statutory Interpretation............................................................................10
2.1 The Literal Rule..............................................................................................................11
2.2 The Golden Rule.............................................................................................................12
2.3 The Mischief Rule..........................................................................................................13
2.4 The Purposive Approach................................................................................................14
3.0 Summary...........................................................................................................................15
4.0 Reference...........................................................................................................................16
5.0 Lists of Cases....................................................................................................................17
Part 2 Online Class Participation.........................................................................................18

2
1.0 The Sources of Malaysia Law
There are several legal systems in different nations. While some nations exclusively
use one type of legal system, others use a blend of two or more legal systems, which is
referred to as a mixed legal system. Malaysia uses a hybrid legal system that combines
common law, Islamic law, and customary law (Ahmad, S. S. S., 2012).
The Malacca Sultanate, the spread of Islam throughout Southeast Asia, and the
assimilation of British colonial control into the indigenous culture all contributed to the
development of constitutional authorities and commonplace regulation, which form the basis
of Malaysia's legal system (Ahmad, S. S. S., 2012). English common law serves as the sole
legal foundation for Malaysia. Malaysian regulatory sources, which can be classified as
written or unwritten law, refer to the criminal laws that influence Malaysian legal principles.
A set of regulations produced by a body created with that purpose in mind is what is referred
to as legislation. The federal and state constitutions must be followed by legislation passed by
Parliament and state legislatures because they do not have supreme authority. The State may
implement laws on the subjects listed in List II, and Parliament may pass laws on the subjects
included in List I of the Ninth Schedule. Each authority's concurrent competence extends to
List III. Humans or our bodies implement subsidiary legislation, which is then approved by
legislatures. Adopting subsidiary legislation is the responsibility of ministers and local
governments. If it is issued in defiance of a law, the Constitution, or in response to a
declaration of a national emergency made in accordance with Article 150 of the Federal
Constitution, it is void and of no effect.
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3
2.0 The Rules of Statutory Interpretation
Parliament enacts legislation, which are then interpreted by judges using Statutory
Interpretation. While draughtsman make every effort to ensure that the legislation they create
are plain and obvious, outdated statutes may still contain language that is appropriate today
but is no longer used in modern culture (Kysar, R. M., 2008). Judges are obligated to
interpret the meanings of statutes using the Rules of Statutory Interpretation since there can
be more errors that Parliament missed and laws cannot provide for every scenario. The literal,
golden, mischief, and integrated approaches, often known as the purposive approach, are the
three primary rules for interpreting a statute.

As a result, the rules of interpretation or construction utilized by judges to interpret

statutes are just rules of interpretation rather than principles of law. Which of the rules of
interpretation to be used in a particular circumstance is not predetermined by any rule. In the
case of United Overseas Bank (M) Sdn Bhd v UJA Sdn Bhd (2010) 6 CLJ 209, the Federal
Court held that: “..The truth of the matter is that there are no “rules of construction”. What
exist are certain broad guidelines for the interpretation of the written law that the courts
have, from time to time, established for themselves. Some of these are discarded in the
passage of time whilst others rise to take their place (para 8). The rule of law, on the other
hand, comes into play upon certain conditions being satisfied, regardless of the intention of
the parties.” Additionally, these rules will be discussed within the body of this section.
4
Figure 2.0.1: The Rules of Statutory Interpretatio
2.1 The Literal Rule

The literal rule is the primary guideline for interpreting laws. According to this rule,
the judge takes into account what the statute actually states, not what it might entail. In order
to accomplish this, the court will interpret the statute's language literally, that is, according to
their plain, common meaning, even if doing so results in what might otherwise be viewed as
an unfair or unfavourable result. The literal rule states that the meaning of the words
employed in their ordinary and natural context best captures the intention of Parliament
(Palsikar, A., 2020). Parliament must be considered to wish to put into action all it states in
its legislation because it is the legislative democratic portion of the state. The will of
Parliament and the people are being disregarded if judges are allowed to interpret legislative
law's wording in an obvious or nonliteral manner. Lord Diplock remarked once: “Where the
meaning of the statutory words is plain and unambiguous it is not then for the judges to
invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because
they consider the consequences for doing so would be inexpedient, or even unjust or
immoral.” This criterion is predicated on the notion that the statute's language accurately
reflects the Parliament's intent. A new statute is the solution when a law is clearly read and
causes hardship. The judge is not required to fill up the blanks.

5
Benefits of the literal rule include the ability for judges to avoid taking personal
responsibility for their choices; separation of powers; judges can argue that they were only
acting in accordance with their judicial authority and not that of the government's legislative
branch; and complements the purposeful approach. The issue with the literal rule is that it
presumes a word or phrase has only one meaning when read in context, as opposed to having
several interpretations.

6
3.0 Summary
Malaysia's legal framework is built on a set of written and unwritten laws. The
Federal Constitution, the constitutions of the 13 states that make up the Federation, laws
passed by the Parliament and the State Legislative Assemblies, and delegated or subsidiary
laws made by entities with authority granted to them by Acts of the Parliament or State
Legislative Assemblies are all examples of written laws. The ability to issue rules,
regulations, or proclamations may be granted by Parliament to a certain individual or group.
Subsidiary legislation is what this is. Unwritten laws are made up of case law, local
customary law, and English common law concepts that are modified for local conditions.
Another significant source of law is Islamic law, which is solely relevant to Muslims and is
governed by a different set of courts.
The technique by which court judges interpret laws, on the other hand, is known as
statutory interpretation. The literal rule, the golden rule, the mischief rule, and the purposive
approach are the four rules of statutory interpretation that were devised by judges under
common law to be used as standards in interpreting the legislation.

7
4.0 Reference
Ahmad, S. S. S. (2012). Introduction to the Sources of Law in Malaysia. International

Journal of Legal Information, 40(1-2), 174-190.
Bray, S. L. (2020). The Mischief Rule. Geo. LJ, 109, 967.
Kysar, R. M. (2008). Listening to Congress: Earmark Rules and Statutory

Interpretation. Cornell L. Rev., 94, 519.
McCormack, S. W. (2009). Tax shelters and statutory interpretation: A much needed

purposive approach. U. Ill. L. Rev., 697.
Mustafa, M. (2022). Environmental law in Malaysia. Kluwer Law International BV.
Palsikar, A. (2020). Critical Analysis of Literal Rule of Interpretation. Available at SSRN

3720368.
Wattles, J. (1996). The golden rule. Oxford University Press.

8
5.0 Lists of Cases
AJ Thian v Government of Malaysia [1976] 2 M.L.J. 112, 113
Cooper Brookes (Wollongong) P/L v Federal Commissioner of Taxation (1981) 147 CLJ 297
Corkery v Carpenter (1951)
Grey v Pearson (1857) HL Cas 61
Heydon's Case (1584)
Kesultanan Pahang v Sathask Realty (1998) 2 MLJ 513
Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 3 MLJ 389.
Notham v London Borough of Barnet [1978] 1 WLR 220
R. V. Smith (1974) 2 NSWLR 536 NSE CCA
United Overseas Bank (M) Sdn Bhd v UJA Sdn Bhd (2010) 6 CLJ 209

9
Part 2 Online Class Participation

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FACULTY OF BUSINESS AND MANAGEMENT

SEPTEMBER SEMESTER 2022

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1.1 Identification and Evaluation on the First Source............................................................5

1.2 Identification and Evaluation on the Second Source........................................................7

1.3 Identification and Evaluation on the Third Source...........................................................9

2.0 The Rules of Statutory Interpretation............................................................................10

2.1 The Literal Rule..............................................................................................................11

2.2 The Golden Rule.............................................................................................................12

2.3 The Mischief Rule..........................................................................................................13

2.4 The Purposive Approach................................................................................................14

5.0 Lists of Cases....................................................................................................................17

Part 2 Online Class Participation.........................................................................................18

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Referral Code: MartinL for an extra 10% off. | 🔗 OneStopAssignment.com |

👀 Students, get a RM 20 💰 discount on your first assignment at OneStopAssignment! Plus,

use Referral Code: MartinL for an extra 10% off. | 🔗 OneStopAssignment.com |

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As a result, the rules of interpretation or construction utilized by judges to interpret

2.1 The Literal Rule

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👀 Students, get a RM 20 💰 discount on your first assignment at OneStopAssignment! Plus, use

Referral Code: MartinL for an extra 10% off. | 🔗 OneStopAssignment.com |

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Referral Code: MartinL for an extra 10% off. | 🔗 OneStopAssignment.com |

Ahmad, S. S. S. (2012). Introduction to the Sources of Law in Malaysia. International

Bray, S. L. (2020). The Mischief Rule. Geo. LJ, 109, 967.

Kysar, R. M. (2008). Listening to Congress: Earmark Rules and Statutory

McCormack, S. W. (2009). Tax shelters and statutory interpretation: A much needed

Mustafa, M. (2022). Environmental law in Malaysia. Kluwer Law International BV.

Palsikar, A. (2020). Critical Analysis of Literal Rule of Interpretation. Available at SSRN

Wattles, J. (1996). The golden rule. Oxford University Press.

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Grey v Pearson (1857) HL Cas 61

Heydon's Case (1584)

Kesultanan Pahang v Sathask Realty (1998) 2 MLJ 513

Notham v London Borough of Barnet [1978] 1 WLR 220

R. V. Smith (1974) 2 NSWLR 536 NSE CCA

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Referral Code: MartinL for an extra 10% off. | 🔗 OneStopAssignment.com |

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