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Sources of Malaysian Law - Coggle Diagram

- - - - (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 + consent of the Conference of Rulers under Art.159(5): Matters concerning the Conference of Rulers, powers & rights of the Rulers, rights & priveleges of Malays, & Sabah & Sarawak, interests of other communities & citizenship, boundaries of States, issues on freedom of speech in interests of internal securities and public peace.
      - (d) Amendment requiring two-thirds majority plus consent of the Yang Di-Pertua Negeri of Sabah / Sarawak under Art.161(E)
  - - - Proceedings brought under (a) must comply strictly with the requirement of Art 4(4) - Kerajaan Negeri Kelantan & Anor v Wong Meng Yit & 2 Ors
        
        Proceedings begun for a declaration that a law is unconstitutional as it is outside the competence of the legislature requires leave of a Federal Court judge
        
        Proceedings under (a) is determined by the Federal Court Art.128(1)
        
        Challenges under (b), (c) and (d) are heard in the High Court level or higher
  - - - Loh Kooi Choon v Govt of Malaysia (1977):
        
        Case decided in the Federal Court on the rights and freedoms guaranteed by the Constitution, and also involving the extent to which Parliament can amend the Constitution
      - The constitution is given a broader and more generous interpretation than ordinary legislation - Dato' Menteri Othman bin Baginda v dato Ombi Syed Alwi
        
        In assessing a statute for compatibility with the Constitution, Courts will adopt interpretation of the statute that renders it compatible with the Constitution rather than striking down - PP v Pung Chen Choon (1994)
- - - - Committee stage: Detailed examination of Bill & consideration of amendments followed by a report of Bill to the Dewan
        
        3rd Reading: Further debates on principles of the Bill
        
        Dewan Negara (Senate): Bill is sent back and forth from Rakyat to Negara to agree on the amendments
        
        Royal Assent: The YDPA affixes public seal, YDPA yet to assent after 30 days, the Bill will become law as though its assented
        
        Publication: Publication in Federal Gazette, Act comes into force from date of publication.
  - - - Control mechanisms/methods:
        
        Judicial
        
        Legislative
        
        Other controls
        
        Judicial Controls:
        
        Any subsidiary legislation inconsistent with an Act of Parliament or State Enactment will be void to the extent of the inconsistency - s.23(1) & s.87*d)
        
        Judicial review: raised by the aggrieved person - courts may declare a subsidiary legislation ultra vires
        
        Substantive ultra vires: body of persons who made the subsidiary legislation made laws beyond its power conferred by parent statute
        
        Legislative Controls:
        
        Legislature that grants power to the mains statute to delegate powers may repeal the statute/revoke the delegated power
        
        Parent state might need the DL to be laid before it - 'laying provisions'
        
        s.83(3) Trademarks Act 1976 that required 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.
        
        Publications: when a parent statute requires subsidiary legislation to be published, non-compliance will render it void
- - - - Dato Seri Anwar Ibrahim v PP (2010):
        
        Once there is written law in Malaysia on that matter, English common law and the rules of equity are excluded from our law.
- - - - A court bound by all decisions of all higher courts than it is the same hierarchy
        
        It doesn't have to follow the decisions, can make a different decision per incuriam
        
        Harris Sold State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira (1996):
        
        C tried to argue that the FC decision in Rama Chandran v The Industrial Court of Malaysia & Anor (1997) was wrong & should not be followed. CA disagreed & held that its bound to follow & apply law stated in Rama Chandran. Its a decision of the apex court & constitutes binding precedent
        
        Dhalip Bhagwan Singh v Public Prosecutor (1998):
        
        When there are 2 conflicting precedents, a court may choose to follow either decision if it originating from the CA or FC, follow the latest decision.
    - - Pre - 1985
        
        Privy Council
        
        FC
        
        HC (Malaya) and High Court of Sabah & Sarawak
        
        PC never considered itself binding by its own decisions
        
        The FC
        
        Civil cases: bound by its own decisions
        
        Criminal cases: not bound by its own decisions
      - 1985 - 1994:
        
        SC
        
        HC (Malaya) and High Court of Sabah & Sarawak
        
        The SC in majority held that it was not bound by the decisions of the FC. But it was held in minority that the SC is the FC under a different name and it should be bound by its own decisions (referring to Yong v Bristol Aeroplane Company Ltd (1944)
      - 1994 - present:
        
        FC
        
        CA
        
        HC (Malaya) and High Court of Sabah & Sarawak
        
        The FC
        
        S.2 of the Constitution Amendment Act 1994 & S.5(c) of the Courts of Judicature (Amendment) Act 1994 renamed the SC as the FC
        
        Criminal matters: FC considers itself bound by the decisions of the SC
        
        The CA
        
        S.13 of the Constitution (Amendment) Act 1994 added Clause (1B) to Art,131 to the Federal Constitution - creating the CA
        
        CA is bound by its own previous decisions
- - - - Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Another Appeal (1996):
  - - - Koh Fatt Kiew v PP (1935)
  - - - Kesultanan Pahang v Sathask Realty Sdn Bhd (1998):
        
        Does the word "person" in S.6(1) of the Sultanate Land Enactment 1919mean only natural persons or it can include artificial persons e.g. corporations:
        
        The FC: generally, "persons" means natural persons & can include artificial persons. But after assessing the whole statute, its repugnant for it to include artificial persons. Thus "persons" in S.6(1) of the Enactment should be confined only to natural persons
  - - - Lim Phin Khian v Kho Su Ming (1996)
  - - - Foo Loke Ying v Television Broadcasts Ltd (1985)
  - - - External Aids:
        
        Dictionaries, interpretation statutes, Hansard
  - - - Public Prosecutor v Pengurus Tong Trading & Co (1985):
        
        "it shall not contain any spurious or exhasted or decayedor 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
- - - - Native Law:
        
        Applicable to natives of Sabah and Sarawak
        
        The reception of English law were more protective of customary laws in Sabah & Sarawak compared to West Malaysia
        
        Courts are more influenced by customs ans usage
        
        Customary laws were long codified:
        
        Woolley's Codes, Undang-Undang Native Court, Mahkamah Adat Orang Islam Orang Islam (Sabah)
      - Local Customs:
        
        Malays, Chinese and Indians in Malaysia practice customs associated with their ethnic group