LAW61104

MALAYSIAN LEGAL
SYSTEM
SOURCES OF MALAYSIAN LAW
  There are different types of legal systems around the world
 Some have a combination of two or more legal systems: known as
mixed legal system while some countries practice only one type of
legal system.
 In Malaysia the legal system consists of:
 Common Law,
 Islamic Law,
 Customary Law; and
 Native Law.
 Hence it is a mixed legal system.
MLS. Sources of Law
  Malaysian legal system comprises laws
which have arisen from three significant
period in the Malaysian history namely:
 The Malacca Sultanate
 The spread of Islam in Southeast
Asia and into Malaya; and
 British colonial rule introducing the
common law and constitutional
governance.

MLS. Sources of Law

 SOURCES OF MALAYSIAN LAW

 Art 160 of the Federal Constitution defines “law” to include

written law, the common law in so far as it is in operation in
the Federation or any part thereof, and any custom or usage
having the force of law in the Federation or any part thereof.
 The sources of Malaysian Legal System can be divided into
Written and Unwritten laws.
 https://www.youtube.com/watch?v=qdJWYoDIM1w

MLS. Sources of Law

MLS. Sources of Law
FEDERAL CONSTITUTION
MLS. Sources of Law
MLS. Sources of Law
 FEDERAL CONSTITUTION: WRITTEN LAW

 In the case of Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at p.113 Suffian LP
pointed out that,

 ” The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written
constitution. The powers of Parliament and of State Legislatures in Malaysia is limited by the
Constitution and they cannot make any law as they please’.

MLS. Sources of Law

 FC embodies British and Indian constitutional concepts and local influences.
 Original framework for the FC was as laid down by the Federation of Malaya Constitution 1948.
 The Reid Commission (1956-57) then drafted a new Constitution of the Federation of Malaya (1957) or the
“Merdeka Constitution”.
 The Federation of Malaya as a whole (and not the individual Peninsular states) merged with Sabah,
Sarawak and Singapore in 1963 to form Malaysia.
 The Malaysia Act 1963 effected wide amendments to the Merdeka Constitution that produced the present-day
Federal Constitution of Malaysia

MLS. Sources of Law

 REID COMMISSION REPORT

MLS. Sources of Law

See: http://www.catholiclawyersmalaysia.org/sites/default/files/Reid%20Commission%20Report%201957.pdf

MLS. Sources of Law

 AN OVERVIEW OF THE
FEDERAL CONSTITUTION OF
MALAYSIA

MLS. Sources of Law

MLS. Sources of Law
  Can The Federal Constitution Be Amended?

How?

MLS. Sources of Law

The Constitution can be altered by formal amendment or by changing modes of judicial interpretation.
 The power of formally amending the Federal Constitution is vested exclusively in the Federal Parliament.
 There are four modes of formal amendment:
(a) Amendment by two-thirds majority in both Dewans (House of Representatives and Senate)
under Art. 159(3) : most provisions of the Constitution

(b) Amendment by simple majority under Art.159(4) :

Relating to admission of a state into the Federation, the composition of the Dewan Negara (Senate) & the rules concerning the election &
retirement of its members.

(c) Amendment requiring two-thirds majority plus consent of the Conference

of Rulers under Art.159 (5)

Matters concerning the Conference of Rulers, powers & rights of the Rulers, rights & privileges of Malays, & Natives of Sabah &
Sarawak, interests of other communities & citizenship, boundaries of States, issues regarding freedom of speech in the interest of
internal security & public peace.

(d) Amendment requiring two-thirds majority plus consent of the Yang Di-Pertua Negeri of Sabah / Sarawak under Art. 161E
MLS. Sources of Law
MLS. Sources of Law
MLS. Sources of Law
 SUPREMACY OF THE FEDERAL CONSTITUTION
 The supremacy of the Constitution is secured via the power of judicial review.
 See e.g. Marbury v Madison 5 U.S. 137 (1803)
 A U.S. Supreme Court case that established the principle of judicial review in the
United States, meaning that American courts have the power to strike down laws,
statutes, and some government actions that contravene the U.S. Constitution. The
Court's landmark decision established that the U.S. Constitution is actual "law", not
just a statement of political principles and ideals, and helped define the boundary
between the constitutionally separate executive and judicial branches of the
American form of government.

 In Malaysia since we have a written constitution, the Court bears the onerous role of being
not only the interpreter but also the guardian of the Constitution as well as its
fundamental principles.
MLS. Sources of Law
  How Does The Court Uphold The Supremacy Of
The Federal Constitution?
MLS. Sources of Law
The Court may invalidate laws that are ultra vires ( acting beyond the powers), that is to say:
(a) Enactment of laws outside the jurisdiction of Parliament or the State Legislature
(b)Laws inconsistent with the procedure for enactment prescribed in the FC
(c )Laws contrary to any provision of the FC
(d)Laws that are inconsistent with Federal law (where the law in question is State law)

 Proceedings brought under (a) must comply strictly with the requirements of Art.4(4) FC;
Kerajaan Negeri Kelantan & Anor v Wong Meng Yit & 2 Ors (Court of Appeal, 27 June
2012).
 In particular, proceedings begun for a declaration that a law is unconstitutional because it
is outside the competence of the legislature requires prior leave of a Federal Court judge.
 Proceedings under (a) will be determined by the Federal Court; Art.128(1)
 In practice, challenges to legislation under (b), (c) and (d) are heard and disposed at High
Court level or higher.
MLS. Sources of Law
 INTERPRETING THE FEDERAL
CONSTITUTION
The most common approaches to constitutional interpretation are:
(a) The literal / originalist / conservative / “positivist” approach
(b) The liberal / creative / purposive / “living constitution” approach
 Generally, in Malaysia, the guiding principle is that the FC is to be interpreted in its entirety, “within the
four walls of itself” and in view of the prevailing circumstances in this country.

 See Loh Kooi Choon v Govt of Malaysia [1977] 2 MLJ 187;

 a case decided in the Federal Court of Malaysia concerning the rights and freedoms guaranteed by the Constitution, and also
involving the extent to which Parliament can amend the Constitution.

 See also: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Anor [1996] 1 MLJ 481 at p.531.

MLS. Sources of Law

 The Constitution is to be given a broader and more generous interpretation than ordinary
legislation;
 See Dato’ Menteri Othman bin Baginda v Dato Ombi Syed Alwi [1981] 1 MLJ 29 (per Raja Azlan Shah Ag
LP, as His Royal Highness then was).
 This dispute concerns the succession to the 14th Undang (Ruling Chief) of the luak (territory) of Jelebu in the
State of Negri Sembilan, and the answers to the issues that arise in this appeal turn on the construction of
certain provisions in the Federal Constitution and in the State Constitution.
 In assessing a statute for compatibility with the Constitution, the Courts can and will, if
necessary, adopt an interpretation of the statute that renders it compatible with the Constitution
rather than striking it down;
 See PP v Pung Chen Choon [1994] 1 MLJ 566 (Supreme Court) – Accused charged for maliciously
publishing false news under the Printing Presses and Publication Act 1984.
 This means that striking down for unconstitutionality is usually adopted only as a last resort.

MLS. Sources of Law

LEGISLATION
MLS. Sources of Law
 PRINCIPAL The Parent/Main Act
ACT

AMENDMENT
Changes to the Principal Act is made
ACT

Changes that do not affect the provisions of the

REVISED ACT Principal Act ( e.g grammatical errors, typo
errors)

Brings together 2 or more Acts on a specific

CONSOLIDATED subject matter into a simple Act
ACT
MLS. Sources of Law
 Parliament consists of the Yang DiPertuan Agong (King) & 2 Dewans (Houses), the Dewan Rakyat
(House of Representatives) & Dewan Negara (Senate)
 A legislation is generally introduced as a Bill which is later passed by both Dewans and assented by
the YDPA
3 types of Bills:-
 Public Bill – on general matters of public interest
 Private Bill – on local or private matters
 Hybrid Bill – on general matters of public interest that may adversely affect the interest of some private
bodies or persons
 Usually originates from Dewan Rakyat

MLS. Sources of Law

Legislative Process
• Government proposal
• Meetings between relevant government authorities
• Drafting of a Bill by Parliamentary draftsperson
Pre- Parliamentary
Process • Cabinet approves the Bill

• Minister formally introduces Bill into Dewan Rakyat (House of Representatives)

First Reading

• Most important stage

• Debate on the general principles of the Bill followed by a vote
Second Reading
 • Detailed examination of the Bill & consideration of amendments followed by a report of
the Bill to the Dewan
Committee Stage

• Further debate on the general principles of the Bill followed by a vote

• Substantive amendments not allowed except with permission of the Speaker.
Third Reading

• Similar procedures as the Dewan Rakyat.

• No power to change, veto, reject a Bill passed by Dewan Rakyat but it may delay the passing of the Bill – 1
month if it is a Money Bill, 12 months if it is a non-Money Bill
• If not passed, Bill is referred back to Dewan Rakyat
• If passed or persists to disagree with the Dewan Rakyat, the Bill will be presented for Royal Assent at the
Dewan Negara
(Senate) end of the specified period.
• Exception: a Bill to amend the Federal Constitution – must be passed by the required majority in both
Dewan’s before being sent for Royal Assent.
 • The YDPA affixes the Public Seal; within 30 days of
presentation the Bill becomes an Act – Art 66(4A)
• If the YDPA has yet to assent after 30 days, the Bill shall
Royal Assent become law as though it was assented

• Publication in Warta Kerajaan Malaysia (Federal

Gazette)
• Act comes into force on the date of publication or if
there is a specific date prescribed, on the specific date so
Publication prescribed
http://www.parlimen.gov.my/soalan-la
zim.html?uweb=p&lang=en
 SUBSIDIARY LEGISLATION/DELEGATED LEGISLATION

Legislation made through powers delegated by the legislature to a body or persons via a parent statute
 Proclamation (an official announcement),
 Rule (an accepted principle or instruction that states the way things are or should be done, and tells you what
you are allowed or are not allowed to do);
 regulation (rules made by a government or other authority in order to control the way things operate/
governed);
 order (a confirmed request by one party to another to carry out something);
 notification (the act of telling someone officially about something, or a document that does this);
 by-law (a regulation made by a local authority or corporation)
Refer to s.3 Interpretation Acts 1948 & 1967

MLS. Sources of Law

 SUBSIDIARY LEGISLATION/DELEGATED
LEGISLATION

Reasons:
 Insufficient time to enact all legislation-to cover every aspect of society
 Engage Expertise to address various issues
 Saves time-Parliament not in session every single day of the year

What are the Control mechanism/methods to ensure compliance with Parent Act?
 Judicial
 Legislative
 Other controls

MLS. Sources of Law

 Judicial Control
 Any subsidiary legislation inconsistent with an Act of Parliament or State Enactment shall be void to
the extent of the inconsistency – s.23(1) & s.87(d) of the Interpretation Acts 1948 & 1967
 Judicial review – usually raised by an aggrieved person – courts may declare the subsidiary legislation
ultra vires (beyond the scope or in excess of legal power or authority) the main statute
 Substantive ultra vires – body or persons who made the subsidiary legislation made laws beyond its
power as conferred by the parent statute
 Case: Major Phang Yat Foo v Brigadier General Dato’ Yahya bin Yusof & Anor [1990]
1 MLJ 252
 R.63(3) of the Armed Forces (Court Martial) Rules 1976 was void to the extend that it confers jurisdiction on the
convening authority to approve or disapprove decision of a court martial contrary to s.119 of the Armed Forces Act
1972 which authorises only the Minister of Defence to make rules of procedure relating to investigation and trial
offences by court martial.

MLS. Sources of Law

  Procedural ultra vires – the body or persons entrusted to create a subsidiary legislation failed to
follow a mandatory procedure laid down by the parent statute
 Case: Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur [1992] 2 MLJ 393
 Under s.22 of the Federal Territory (Planning) Act 1982, notice must be given to affected parties to
allow them to make objections before granting any planning permission. However, due to the
negligence of DBKL, no notice of application for planning permission was given to the appellant

MLS. Sources of Law

 LEGISLATION & OTHER CONTROL
MECHANISM
Legislative Control
 The legislature which grants the power to the main statute to delegate its powers may repeal the statute or revoke or vary the
delegated power
 A parent statute may require the delegated legislation be laid before it, either for its information or confirmation – ‘laying
provisions’
 S.83(3) Trademarks Act 1976 which requires a subsidiary legislation be laid before both Dewans

Other controls
 Consultation – before a subsidiary legislation is made, consultation to an expert body or person is mandatory
 Financial Procedure Act 1957 authorises the YDPA to make regulations after consulting the Commodities Trading Commission
 Publication – when a parent statute requires a subsidiary legislation to be publish, non-compliance will make it void
 Such publication will be in Malay and English in 2 parts of the Gazette:
 Tambahan Perundangan ‘A’ (Legislative Supplement ‘A’ which contains all proclamation rules, regulations, orders and by-laws (PU (A))
 MLS. Sources of Law
Tambahan Perundangan ‘B’ (Legislative Supplement ‘B’ which contains all other subsidiary legislation (PU(B))
ENGLISH COMMON LAW
AND RULES OF EQUITY
MLS. Sources of Law
MLS. Sources of Law
MLS. Sources of Law
MLS. Sources of Law
MLS. Sources of Law
 Common law & rules of equity (and statutes of general application in Sabah & Sarawak)
applies only in certain situations:-

a) Absence of local legislation

 Case: Yong Joo Lin v Fung Poi Fong [1941] MLJ Rep 54, 55
 Principles of English law have for many years been accepted in the
Federated Malays States where no other provisions have been made by
statute…

b) Cut-off dates
 Only common law & rules of equity (and statutes of general rules of
application in Sabah & Sarawak) up till the cut-off dates is applicable
 Although decisions after the cut-off date is not binding, it can be persuasive
 c) Local Circumstances
 English law is only applicable when permitted by local circumstances &
inhabitants

 Specific application of the Civil Law Act

 S.5 – application of common law in commercial matters
 Sub-section (1) – English common law in commercial matters are
applied up to the cut-off dates in all states in West Malaysia except
Penang and Malacca
 Sub-section (2) – English common law in commercial matters are still
applicable in Penang, Malacca, Sabah & Sarawak
 Non application of English land law – s.6
 Malaysia follows the Torrens system which is based from
Australian land law. Hence English land law is not applicable in
Malaysia.

 Other specific reception of English law

 S.27 Civil Law Act (guardianship, custody and control of
infants); s.47(1) Partnership Act 1961
 THE DOCTRINE OF PRECEDENT

&

STATUTORY INTERPRETATION

MLS. Sources of Law

The doctrine of stare decisis, therefore, has a two-way operation:

 Vertical (a court is bound by the prior decisions of a higher court); and

 Horizontal (some courts are bound by their own prior decisions and prior decisions of a
court of the same level,whether past or present).

•The basic rationale for the observance of precedent is that a court higher in the same
hierarchy has laid down that principle as the applicable law. If a lower court chooses not
to follow that principle, on appeal the higher court can correct the decision.

MLS. Sources of Law

MLS. Sources of Law
MLS. Sources of Law
 DOCTRINE OF
STARE DECISIS
 The application of the doctrine
from a higher court to a lower
court is called the vertical ‘stare
decisis’.

 Decision of an earlier judge of

similar or coordinate jurisdiction
is called horizontal ‘stare decisis’.

MLS. Sources of Law

1.Vertical Operation
 A court is bound by all decisions of all courts higher than it in the same hierarchy
 It may not, not follow the decisions
 It may not make a different decision or make a decision per incuriam

 Case: Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira [1996] 3 MLJ
489
 The appellants tried to argue that the FC decision in Rama Chandran v The
Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 was wrong & should not be
followed. The CA disagreed & held that it is bound to follow & apply the law as stated
by the majority in Rama Chandran even if it suffers from any infirmity. It is a decision
of the apex court & constitutes binding precedent

 When there are 2 conflicting precedents, a court may choose to follow either decision if it
originates from the CA or in decisions of the FC, follow the latest decision.
 Dhalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1
 Problems
i. Decisions of the Privy Council
 The PC was the highest court of appeal in Malaysia until 1984.
 Its decisions were binding on all courts in Malaysia when its decision was an appeal from
Malaysia or the decision was in a case from another country whose law in point was the same as in
Malaysia
 Case: Wong See Leng v Sarawathy Amal (1954) 20 MLJ 141; Khalid Panjang & Ors v Public
Prosecutor (No 2) [1964] 30 MLJ 108
 Appeals to the PC was abolished with effect from 1985
 Q: does its decision in appeals from Malaysia bind Malaysian courts NOW?
 It is said that only the FC, as the apex court, can decide whether to depart from the decisions.
 Case: Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union [1995]
2 MLJ 317, the CA held that “…it is now open to the superior courts in Malaysia to refuse to
follow Fire Bricks (a PC case) if they choose to do so, without being guilty of judicial
impertinence or indiscipline”

 Q: does its decisions of cases from another jurisdiction bind Malaysian courts now? No, merely
persuasive
ii) Decisions of Predecessor Courts of the Present Federal Court
 Federal Court pre 1985, Supreme Court 1985-1994
 Their decisions are currently binding on all courts in Malaysia until overruled by the present FC
 Case : Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] 2 MLJ 520
 the court held that it could not & should not differ from the decision of Alor Janggus
Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241
until it is reversed by the Federal Court
2. Horizontal Operation.

Pre-1985 1985-1994 1994-present

 Privy
Council

Pre 1985
Federal Court

High Court
High Court
of Sabah &
Malaya
Sarawak
 The PC never considered itself bound by its own decisions

 The FC
 In civil cases, considered itself bound by its own decisions
 In criminal cases, considered itself not bound by its own decisions

 The High Courts

 Case: Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211
 A HC decision does not bind another HC
 This position remains till today
 Supreme
Court
1985 – 1994

High Court of
High Court of
Sabah &
Malaya
Sarawak
 The Supreme Court
 Q: was the Supreme Court successor to the Federal Court & hence
bound by it? Is the Supreme Court also bound by its own precedents?
 Case: Government of Malaysia & UEM v Lim Kit Siang [1988] 2
MLJ 12
 The Supreme in majority held that it was not bound by the
decision of the Federal Court & their own prior decisions.
However, it was the held in minority that the Supreme Court is
the Federal Court under a different name & it should be bound by
 Federal Court

Post 1994 Court of

Appeal

High Court of
High Court of
Sabah &
Malaya
Sarawak
 The Federal Court
 S.2 of the Constitution (Amendment) Act 1994 & s.5(c) of the Courts of Judicature
(Amendment) Act 1994 renamed the Supreme Court as the Federal Court.
 S.17 of the Courts of Judicature (Amendment)Act 1995 – any cases pending before the
Supreme Court on 23/6/1994 shall continue in the Federal Court & for that purpose the Federal
Court shall exercise the powers of the Supreme Court.

 Q: is the current Federal Court the successor of the Supreme Court? Is it bound by the practice
& precedents of the Supreme Court?
 Civil matters
 Case: Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165
 In civil matters, the FC does not regards itself as bound by the decisions of the SC
  Case: Koperasi Rakyat Sdn Bhd v Harta Empat Sdn Bhd [2000] 2 AMR
2311
 The FC should … consider itself … bound by its previous decisions.
However, the FC can depart from its previous decisions where “… it
appears clear that the earlier decision was given in defiance of an express
statutory provision that was overlooked by this court. Equally where a
serious error … that has distorted the law…”

 Criminal matters
 The FC considers itself bound by the decision of the SC
 Case: Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514
 Case: Arulpragasan a/l Sandaraju v Public Prosecutor [1997] 1 MLJ 1;
Dhalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1
 The Court of Appeal
 S.13 of the Constitution (Amendment) Act 1994 added Clause (1B)
to Art. 121 to the Federal Constitution – establishing the Court of
Appeal
 Is the Court of Appeal bound by its own predecessor?
 Case: Kesultanan Pahang v Sathask Realty Sdn Bhd
 It is bound by its previous decisions
 Case: Kwong Yik Bank Berhad v Ansonia Management
Associates Sdn Bhd [1999] 1 AMR 377
C. Decisions from Other Common Law Countries

 Persuasive only
 Case: Jamil bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217
which followed the decision in Lim Poh Choo v Camden & Islington
Area Health Authority [1980] AC 174 which held that it for the courts
of Malaysia to decide, subject always to the statute law of the Federation,
whether to follow English case law. Modern English authorities may be
persuasive but are not binding.

 Keep in mind the provisions of ss 3(1), 5(1) & 5(2) of the Civil Law Act
1956 (Revised 1972)
 STATUTORY
INTERPRETATION

MLS. Sources of Law

 3 statutes on statutory interpretation in Malaysia
i. Interpretation Acts 1948 & 1967 (Consolidated & Revised 1989)
ii. Interpretation & General Clauses Enactment of Sabah (No 34 of 1963)
iii. Interpretation Ordinance of Sarawak 1953 (Cap 1)
 These statutes defines, among others, common terms & phrases
 Masculine gender to include the feminine
 Singular includes plural vice versa
 ‘person’ includes a corporation
 Most statutes also have the ‘definition section’ defining terms and
phrases used in the particular statute.
 COMMON LAW RULES

i. Mischief Rule
• Heydon’s case (1584) 3 Co Rep 7
 To truly interpret a statute, courts would have to consider:-
 The common law before the Act
 What was the mischief & defect that the common law did not remedy
 What was the remedy that was intended by the Parliament
 What was the true reason for the remedy
 Case: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Another Appeal [1996] 1 MLJ
481
 Issue was the interpretation of s.20(3) of the Industrial Relations Act 1967 which confers on the
Minister of Labour and Manpower the discretion whether or not to refer an industrial dispute to
the Industrial Court and whether in exercising this discretion, the Minister made a decision in
the legal sense and hence was subject to judicial review.
 The court examined the position at common law and the legislative history of the Act, as per
Heydon’s case. As such, it can be seen that the Parliament had intended to elevate the weak and
subordinate position of a workman at common law to a much stronger position. Parliament had
wanted to alter the employer-workman relationship which was a consensual one, capable of
termination by the employer at all to one which gives the workman security of tenure. Hence,
s.20 has to be given a broad and liberal interpretation, one that would advance rather than
hinder the purpose for which the Act was enacted.
 CA: yes, the Minister would have made a decision in the legal sense and hence was subject to a
judicial review.
ii) Literal Rule
 Dominant approach to statutory interpretation
 Words in a statute must be given their literal or grammatical (in simple
language, plain or ordinary) meaning (and technical words, their ordinary
technical meaning), whatever the outcome
 Case: Public Prosecutor v Chin Kim Foo (unreported)
 S.19 of the Copyright Act 1987 was up for interpretation.
 • In Kon Fatt Kiew v PP [1935] 1 LNS 28, the
appellant was charged with being in possession of
rubber in excess of the amount permitted by s 1
(i) of the Rubber Regulation Enactment 1934.
LITERAL • The issue was whether ‘scrap rubber’ came
RULE within the definition of ‘rubber’ in s. 2 of the
Enactment.
• Held: when the meaning of a clause of a statute is
clear, that meaning must be given to the language
of the Enactment.
• The appellant was rightly convicted.
• See also: Pendaftar Pertubuhan v Datuk Justin
Jinggut [2013] 3 MLJ 16.

MLS. Sources of Law

iii) Golden Rule
 A modification of the literal rule
 Case: Grey v Pearson
 …the grammatical and ordinary sense of the words must be adhered to, unless that would lead to some
absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the
grammatical & ordinary sense of the word may be modified, so as to avoid that absurdity and
inconsistency, but no further

 Case: Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513
 Does the word “person” in s.6(1) of the Sultanate Land Enactment 1919 mean only natural persons or
can it include artificial persons eg corporations?
 The FC: generally, “persons” means natural persons & can include artificial person. But after looking
at the whole statute, it is repugnant for it to include artificial persons. Hence “persons” in s.6(1) of the
Enactment should be confined only to natural persons.
 • In Leaw Mei Lee v Attorney-General & Ors [1967], the
petitioner was a law graduate doing her pupilage in a
legal firm. The time prescribe for pupillage is 12 months
unless he/she had obtained a certificate issued by
University Malaya that he/she had satisfactorily
completed a post-graduate course and the period of
pupilage will be reduced by 6 months. Having obtained
her post-graduate certificate, she applied to be admitted
GOLDEN to the Bar but was opposed by the Bar Council on the
ground that the statue required the post-graduate course
RULE to be done previous to the reading in chambers.

• Ong Hock Thye FJ said:’ if the language used in the statute

is ambiguous and capable of two constructions, the
proper course is “to adopt the construction which will give
some effect to the words rather than that which will give
none”.
• FC ruled that the petitioner could do the post-graduate
practical course and read in chambers concurrently.
MLS. Sources of Law
iv) Purposive Approach
 Originates from the mischief rule
 Requires judges to seek and promote the purpose underlying the statute/the spirit of the
statute
 S.17A of the Interpretation Acts 1948 & 1967
 …a construction that would promote the purpose or object underlying the Act (whether
that purpose or object is expressly stated in the Act or not) shall be preferred to a
construction that would not promote the purpose or object.
 Case: Lim Phin Khian v Kho Su Ming [1996] 1 MLJ 1; Kesatuan Kebangsaan
Wartawan Malaysia & Anor v Syarikat Pemandangan Sinar Sdn Bhd & Anor [2001]
CLJ 547; Kesultanan Pahang v Sathask Realty Sdn Bhd (supra)
v) Unified or Contextual Approach
 The 3 traditional ways seem to be merging.
 Most popular is merging the literal rule and purposive approach.
 Case: Foo Loke Ying v Television Broadcasts Ltd [1985] 2 MLJ 35;
Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449; Petroleum
Nasional Berhad v Kerajaan Negeri Terengganu & Another Appeal [2003]
5 AMR 696
 LANGUAGE RULES
a)Esjudem Generis
 General words which follow particular & specific words all of one genus are presumed to be
restricted to the same genus as the particular words
 Case: Public Prosecutor v Pengurus Tong Trading & Co [1985] 1 MLJ 366
 “…it shall not contain any spurious or exhausted or decayed or mouldy leaves or stalks or
Prussian blur or lead or any compounds of lead or other matter for facing or for any other
purpose” was held to mean any other matter which is either harmful or deleterious to the
human body

b)Expression Unius Est Exclusion Alterius

 Express mention of one or more things or persons of a particular class implies the exclusion of
all others of that class
 Eg when “color” is defined as red, blue and white, it literally means red, blue and white

c)Noscitur a Sociis
 A word derives its meaning from its context
PRESUMPTIONS

 There are certain principles or values that are important in

upholding justice
 Courts will presume these principles as applicable when
interpreting a statute unless the legislature states otherwise
by express words or implications
INTERNAL AND EXTERNAL AIDS

Internal Aids
i. Short Title
ii. Long title, Preamble and Schedule
iii. Marginal or Side Notes
iv. Punctuation
v. Illustrations

External Aids
 Dictionaries, interpretation statutes, Hansard
CUSTOMARY LAW
MLS. Sources of Law
MLS. Sources of Law
 Definition: “…a regular pattern of social behavior which has been accepted by the bulk of a given society as binding
upon its members, because such behavior has been found to be beneficial not only as a means of encouraging inter-
personal relations among them, but also being beneficial for maintaining a cohesive society for their individual and
collective betterment”

 5 different customary laws in Malaysia

a) Malay customary laws applicable to the Malays
 Adat Temenggung, Adat Perpatih
b) Chinese customary laws applicable to the Chinese
 Creation of the courts due to lack of precedents identifying what exactly is the customary law to be followed
c) Hindu customary laws applicable to the followers of Hinduism
 Precedents & authoritative texts were available
d) Orang Asli customary laws applicable to the aborigines in Peninsular Malaysia
e) Native customary laws applicable to the non-Muslim indigenous communities in Sabah & Sarawak
CUSTOMARY LAWS IN SABAH & SARAWAK

 Customary laws in Sabah and Sarawak are more systematic

 The reception of English law were more protective of customary laws in Sabah & Sarawak compared to West Malaysia
 The courts were more influenced by customs & usage
 Customary laws were long codified
 Woolley’s Codes, Undang-Undang Native Court, Mahkamah Adat Orang Islam (Sabah)
 Undang-Undang Mahkamah Melayu Sarawak; Adat Iban 1993, Adat Bidayuh 1994 (Sarawak)
 Legislation in both states supported the codification of customary laws
 Native Customary Law Ordinance 1955 (Cap 51), Dayak (Iban) Adat Law published in 1963, First Division Dayak
(Bidayuh) Adat Law published in 1964 (replaced by Adat Iban 1993 & Adat Bidayuh 1994) (Sarawak)
 Native Rights to Land Proclamation 1889, Village Administration Proclamation 1891, Abolition of Poll Tax Proclamation
1902; Village Administration Ordinance 1913 (establishment of Native Courts in every district); Native Administration
Ordinance 1937 (replaced by the Native Courts Ordinance 1953); Civil Law Ordinance 1938 (Sabah)
 Problems
 Customary laws are mostly unwritten except in Sarawak hence proving the existence of a
particular custom is difficult
 Case: Sagong bin Tasi & 6 Ors v Kerajaan Negeri Selangor & 3 Ors [2002] 2 MLJ
591
 It was an issue as to whether oral evidence with regards the history of
indigenous people can be admitted as evidence as it would be hearsay.
 The court held that it can be admitted as evidence subject to the
requirements of the Evidence Act 1950

 Q: Relevance of Customary Law today?

MLS. Sources of Law