MALAYSIAN LEGAL SYSTEM
Importance of system of Appeal
v It helps achieve greater uniformity
v It provides opportunity for those who are dissatisfied by the decision of one court to hv the matter reconsidered by a higher court. i.e. gives litigants at least 2 chances to obtain their justice.
v Enables a higher court to review the decisions of a lower court, n rectifies any possible errors as to facts or law made by lower court.
v Helps to develop greater uniformity in the law as the lower courts r bound by the precedents set by the higher courts in line with the doctrine of judicial precedent.
Adv of having a court system with a hierarchy
v Results in greater administrative convenience, efficiency n cost effectiveness.
v Facilitates specialization in the judicial process.
- The higher courts which r presided by senior n experience judges handle more serious criminal offences n more serious civil matters involving larger sum of money.
- The lower courts r left to handle less serious criminal offences n civil disputes involving smaller sum of money.
v Facilitates application of doctrine of judicial precedent, which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in application of law.
v Facilitates system of appeal. The hierarchy distinguishes btw the higher n lower courts so that person who r dissatisfied with the decisions of a lower court hv an avenue to hv the decision reviewed by a higher court.
SOURCES OF M’SIAN LAW
(B) Doctrine of Judicial Precedent
What is precedent?
It is one where judges r bound to follow the decisions made by their precedent in similar cases.
As long as the facts of the present case are similar to that of the old case, the judge is bound to follow the principles in the old case. If a judge refuses to follow the precedent, the decision will legally be wrong n may be overruled or reversed on appeal.
Justice Chang Min Tat said that the Federal Court accepts unreservedly the doctrine of binding precedent n expects the High Court n other inferior courts in the common law system to follow similarly.
Lord Gardiner regarded the usage of the precedent as an indispensable foundation upon which to decide what is law n its application in individual cases.
Elements of Stare Decisis (stand by old decision)
(i) Ratio Decidendi
It is the principle of law upon which the decision is based that is binding on lower courts.
Donoghue v Stevenson
The origin of the precedent- to be binding, the precedent must originate fr courts of an appropriate rank in
the same hierarchy or of a higher rank.
The contents of the precedent is the Ratio Decidendi- It is the legal reasoning of the precedent that is
(ii) Obiter Dicta
Opinion of the judges which is not directly relevant to the case.
Obiter dicta are not binding on future courts as they do not form the legal basis of the decision.
However, they may hv highly persuasive authority if they were made by influential judges of Higher Court.
(Central London Property Trust v Hightrees House- where Lord Denning created the doctrine of
Precedents once they hv established retain their authority no matter how old they could possibly be
Unless they are overruled by a higher court in subsequent cases.
When a case has been overruled, the old rule will no longer be applicable.
Addie v Dumbreck (no duty of care is owed to a trespasser.)
BRB v Herrington ( there is a duty of care to trespassers)
(v) Per Incuriam Statem- statem made through lack of care.
(vi) Reversal- Where a higher court reverses the judgem of the lower courts.
(vii) Disapproval- where a superior court disapproves law created by a lower court, but does not hv the power to do anything unless the case goes up on appeal.
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(a) Helps to achieve certainty n uniformity in law.
(b) Law developed through cases is more practical as it is based on actual situations rather than hypothetical ones.
(c) Although judges are bound to follow the decisions of a higher court, there is some degree of flexibility. The judges may avoid following the earlier precedent where the case is decided per incuriam. The judges may also avoid it by distinguishing the precedent fr the facts of a present case. The law is adapted to the changing needs of society.
(a) Discovering Ratio Decidendi
Sometimes it is difficult to discover the ration decidendi of the case as there may be more than one. This makes it very difficult for the judge to find the right ration decidendi.
(b) Bulk n Complexity
The increasing no of cases adds complexity to the law. There is a danger that important relevant authority may be overlooked.
A lower court is bound to follow the earlier precedent even if it was wrong. The case may not go on appeal to a higher court n thus the opportunity of correcting the earlier decision may be lost. Judges must justify their reasons for not following the earlier precedents.
**Operations of the doctrine- refer pg18
(C) LEGISLATION ------- Dec00 Q2, June03 Q1, Dec98 Q1
Act- law passed by Federal Parliament
Enactm- law passed by State Legislative Assembly
Ordinance- law passed by Yang diPertuan Agung in state of emergency
- law passed by Federal Parliament during the period of Malayan Union.
- Law passed by Sarawak State Legislative Assembly
Law making process
Law making process is stipulated in the Federal Constitution n the standing orders of Dewan Rakyat n Dewan Negara.
The initial step is where the Legislation Committee will prepare a draft of the proposed legislation. It will then decide whether the issue is a national one. If it is a national issue, it will be put through to Parliament. This is a Bill.
First Reading- this stage is a mere formality. The minister concerned will mention the title of the Bill n give oral notice as to when the second reading will be.
Second reading- the minister concerned will explain to the House the purpose of the Bill n the main issues involved. Heavy debate will take place n at the end of the reading, a vote is taken.
Committee Stage- at the completion of the second reading, the House will automatically resolve itself into a Committee of the Whole House. Most of the ministers n members of Parliament will not be found at this stage. Only those with direct interest will take part in the debate.
The details of the Bill will be discussed in a less formal manner n amendments will be proposed, if necessary.
Sometimes the Bill will be considered by a Special Select Committee, if a motion to that effect is agreed upon by the House.
Report stage- at the completion of discussion at the committee stage, the minister will move a motion to reprt the Bill to the House. The findings of Committee Stage will also be reported to the main House, so that all members is aware of what has transpired during the Committee Stage.
Third Reading- the minister concerned would move a motion to hv the Bill read a third time n passed. When the motion is accepted, the Bill is accordingly passed.
The Bill is then submitted to the other House, where it will undergo the similar stages of consideration.
When the Bill has been passed by both Houses of Parliam, it will be presented to YdPA for his Royal Assent. The Bill becomes law upon receiving the Royal Assent.
Amendment to Article 66 of Federal Constitution
The YdPA must assent to the Bill within 30 days of it being presented to him. This only applies to Money Bills.
Non money Bills- he may return the Bill to the House fr which it originated with a statem of the reasons for his objection to the Bill. The Bill will then be reconsidered by both Houses n if it is passed again after the reconsideration, he must give his assent within 30 days of it being represented to him. If he does not do so, the Bill becomes law after the lapse of 30 days.
D) STATUTORY INTERPRETATION ------------Dec06 Q1, Dec96 Q2
(i) The literal rule – A word or phrase is given its literal or ordinary grammatical meaning.
Sussex Peerage Case, the judge held that ,
If the words of the statute is in themselves precise n unambiguous, then no more may be necessary than
to expound the words in their natural n ordinary sense. The words themselves best declare the intention
of the law giver.
Kon Fatt Kiew v PP – “rubber” includes “scrap rubber”.
Lord Esher in R v Judge of the city of London Court
“ If the words of the act are clear, y must follow them even though they may lead to manifest absurdity. The court has nothing to do with the ques of whether the legislature has committed absurdity.”
(ii) The Golden Rule
This rule is applied by the court to avoid the usage of Literal Rule if its application would produce absurd results.
This rule states that the words in a statute should be interpreted according to their natural n ordinary grammatical meaning, but to the extent that an interpretation does not lead to manifest absurdity.
The Golden Rule should only be applied when it is reasonable to apply, what is reasonable is discretionary, what is reasonable to one judge may not be reasonable to another.
(iii) The Ejusdem Generis Rule
General words should follow a class of specific words.
Public Prosecutor v Pengurus Hong Trading n Co, where the relevant part of a statute referred to a prohibition of tea containing any’ “Perussian Blue, lead or any compounds of lead, or any other matter. The court, by appling this rule, held that the phrase “other matter” referred to things in the same category as “ Perussian Blue, lead or compounds of lead.”
It is diff for the draftsperson to spell out at length all kinds of things n conduct which the Act applies.
(iv) The Mischief Rule
This is applied by courts in interpreting words or phrases, which r ambiguous n unclear, by looking at the statute as a whole. The court will also enquire into the mischief behind the statute.
In Heydon’s Case, the court is required to consider the following matters:
1. What was the common rule before the making of the statute?
2. What was the mischief or defect which the common rule did not provide for?
3. What remedy has the parliament provide for?
4. What was the reason of the remedy?
This has been adopted by M’sian courts in the case of Lim Moh Joo v PP
This rule is very time- consuming n tedious.
Kofi Annan- Human rights are the foundation of human existence n coexistence. Human rights are universal, indivisible n interdependent. Human rights r what makes us human. They r the principles by which we create the sacred place for human dignity.
Refers to certain rights, which are considered as basic n essential to ensure the freedom of ind. These rights r found in the Federal Constitution n are said to be entrenched or enshrined becoz these rights cannot be altered or taken away altogether unless the Constitution itself is amended. This would require a majority of two thirds of both houses of the Parliament.
No person shall be deprived of his life or personal liberty save in accordance with law.
No person may be subject to slavery or forced labour. However, Parliament may make law providing for compulsory national service.
No person shall be punished under law which was not in force when the alleged crime was commited. This means that law against crime cannot be passed with retrospective effect.
All persons are equal before law n entitled to equal protection by law.
Citizens cannot be discriminated against in relation to appointment to office or employment under a public authority, or in relation to acquisition of property, establishing or carrying on of any trade, biz, profession, vocation or employm merely on grounds of race, religion, descent or place of birth.
Similarly, citizens cannot be discriminated against in relation to providing of edu, merely on grounds of race, religion, descent or place of birth.
Every citizen has the right to freedom of speech, peaceful assembly n association. However, in the int of security, public order or morality, Parliament has imposed certain restrictions. For example, the Sedition Act provides that it is an offence to question the power n prerogatives of rulers, n the special position of the Malays. Further, the freedom of speech does not entitle a person to defame another. This will entitle the person defamed to sue the other under the law of defamation.
Every person has the right to profess n practice his own religion, subject to Clause (4) to propagate it.
Every religious group has a right to:-
Manage their own religious affairs.
Establish n maintain institutions for religious or charitable purposes.
Acquire n own property n hold n administer it in accordance with law.