Approaches To Studying Towards ACCA Qualification

I believe as a student, we have a part to play if we want to excel. One cannot just expect to be spoonfed by lecturers and waits for magic to happen ie. be an ACCA Worldprize winner. Lecturers are there only to guide you. You gotta do you part as well. As the saying goes it takes two to tango.

As ACCA students who are pursuing a professional qualification, we are expected to be different from normal college students. We are pursuing a higher level studies. So think maturely. Our approches to studying should be as those of a working adult. Professional traits such as competency, skillfulness, independence, time-management, reliability should be in us. At least if we don't have them all, we should train ourselves towards professionalism. 

My approaches to learning is summarized in three stages: 

 

Before: 

Prepare before class starts. Scheme through past year papers or questions so that your brain is in an inquisitive mode. Have some background knowledge. If you do not prepare, you will feel blur in class and can't really relate when the lectures start. 

During:

Pay full attention. Engage with the lecturers. Ask questions. Get involved. Make full use of them. Be an active student not a passive one. Clarify to confirm your understanding. There should be interaction and communication, that how to learn. After each class you should bring home extra knowledge with you.

After: 

Revise after class, do homework, practise questions, read relevant articles. Summarize your understanding in a notes(if you want to practise your writing) or blog it (this saves paper) so that you can browse through what it wrote. That way knowledges are retained. If ever you have the chance, apply it in your life.

Anyway, in all you do, have passion and thirst for knowledge. That way you wont feel tired studying. Think of all the unfortunate ones who actually yearn to go to college but don't have the means to do it. That way you wont ever take your studies for granted. Have big dreams. Be ambitious. Know that knowledge is power. It will take you somewhere one day. Don't waste a single second of your college life. Embrace your education.

I wish you all the best in your undertakings.

Human Rights

Study Guide

a. Identify the concept of human rights with reference to the Federal Constitution, Universal Declaration of Human Rights and the Human Rights Commission of Malaysia Act 1999.

b. Explain the impact of human rights law on statutory interpretation.

c. Explain the impact of human rights on the common law.

Past Year Questions

Dec 2002 Q1, June 2005, Pilot  Q1, June 2009 Q1, Dec 2011 Q1

The Federal Constitution is said to entrench certain fundamental rights for the protection of the individual. Every citizen is protected under the Federal Constitution which entrenches certain fundamental liberties. 

In relation to the Malaysian legal system:

(a) define ‘human rights’ /explain what is meant by fundamental liberties

(b) state TWO functions of the Human Rights Commission under the Human Rights Commission of Malaysia Act 1999; and 

(c) Explain any (FIVE) provisions which protect human rights as enshrined in the Federal Constitution.
Suggested Answer

This question on the Malaysian legal system tests the candidates’ knowledge on ‘human rights’ and the functions of the Human Rights Commission as provided for in the Federal Constitution.

a. Definition of Human Rights

Human rights refers to the basic rights that all human beings are entitled to enjoy. Human rights is defined in s.2 Human Rights Commission of Malaysia Act 1999 to mean the fundamental liberties provided for under the Federal Constitution of Malaysia. The phrase, ‘Fundamental Liberties’, refers to certain rights, which may be considered as basic and essential to ensure the freedom of the individual. These rights are stated in the Federal Constitution and are said to be entrenched or enshrined because these rights cannot be altered or taken away altogether unless the Constitution itself is amended. This would be quite difficult as it requires a majority of two thirds of all the members of Parliament.

The main liberties so entrenched in the Federal Constitution are as follows:

b. Functions of Human Rights Commission (SUHAKAM)
By s.4(1) Human Rights Commission of Malaysia Act 1999, the functions of the Human Rights Commission (SUHAKAM) are:

• to promote awareness of, and provide education, relating to human rights;
• to advise and assist the Government in formulating legislation and procedures and recommend the necessary measures to be taken;
• to recommend to the Government with regard to subscription or accession of treaties and other international instruments in the field of human rights; and
• to inquire into complaints regarding infringements of human rights.

c. Provisions Relating To Human Rights in FC
The provisions relating to human rights in Malaysia refer to the fundamental liberties as stated in Part II of the Federal Constitution. These include the following:

• No person may be deprived of his life or personal liberty except in accordance with the law.
 By this provision, individuals are protected from being unlawfully imprisoned or put to death. An individual who is unlawfully detained may obtain an order of the court through a writ of habeas corpus. This is an order of the court requiring that he be lawfully charged in court or be released. However, this right is not absolute. A person may still be deprived of his life or liberty in accordance with the law. Thus the Internal Security Act 1960 (which was passed under powers conferred by Art. 149 of the Constitution) permits, among other things, preventive detention.

• No person may be subject to slavery or forced labour
. The Constitution recognises that individuals should not be regarded as the property of others and thus bans all forms of slavery and forced labour. However, this right of the individual is given subject to the paramount interests of the nation. Thus, Parliament may make laws providing for compulsory national service.

• No person can be punished under a law which was not in force when the alleged crime was committed.
This protects the individual from being charged with a crime that was not recognised as a crime at the time the alleged wrongful act was done. Thus, laws against crimes cannot be passed with retrospective effect.

• Citizens cannot be discriminated against
in relation to appointment to any office or employment under a public authority, or in relation to acquisition of property, establishing or carrying on of any trade, business, profession, vocation or employment, merely on grounds of religion, race, descent or place of birth. However, this right is subject to Art. 153 of the Federal Constitution, which permits the granting of special privileges to bumiputras.

• Citizens cannot be discriminated against
in relation to the providing of education, merely on grounds of religion, race, descent or place of birth. This again is subject to Art. 153, which permits the granting of special privileges to bumiputras.

• Freedom of religion. 
The Constitution also entrenches the right of the individual to profess, practise and propagate his own religion. However, as Islam is the religion of the country, restrictions may be placed upon the propagation of other religions among Muslims.

• No citizen may be banished from the country.
However, this right is subject to exceptions whereby the Federal Government is permitted to deprive a person of his citizenship under certain circumstances.

• Every citizen has the right to freedom of speech, peaceful assembly and association.
However, in the interests of security, public order or morality, Parliament may impose certain restrictions. For example, the Sedition Act 1948 provides that it is an offence to question the sovereignty, powers and prerogatives of the rulers and the special position of the Malays. Further, the freedom of speech does not entitle a person to defame another. A person defamed has a right to sue under the law of defamation. 
(Candidates are only expected to explain any THREE of the above rights.)

Rules of statutory interpretation : Ejusdem Generis, Literal, Mischief Rule

Study Guide
Explain the rules and presumptions used by the courts in interpreting statutes.

Past Year Questions

Dec 2006 Q1, June 2010 Q1

In relation to the Malaysian legal system, explain the following rules of statutory interpretation adopted by the courts:

a.The ejusdem generis rule;

b.The literal rule; 

c.The mischief rule. 


Suggested Answer

This question tests the candidates’ knowledge on three specific rules of statutory interpretation, viz, the literal rule, the ejusdem generis rule and the mischief rule.

a.The literal rule

• This is a rule by which a word or phrase is given its literal or ordinary grammatical meaning. According to this rule, if the words of the statute are in themselves precise and unambiguous they must be expounded in their natural and ordinary sense. This rule is very commonly used and sometimes appears to give a result contrary to the intention of Parliament. 
• The case Fisher v Bell (1961) is a good illustration of the application of this rule. In this case a shopkeeper was charged under the Restriction of Offensive Weapons Act 1959 for offering for sale certain weapons, including ‘flick knives’, by displaying these knives in a shop window. The court held, applying the literal rule, that the display was not an offer for sale but merely an invitation to treat. Thus, the shopkeeper was held not guilty. 
• The courts in Malaysia have also adopted this rule. This may be illustrated by the case of Kon Fatt Kiew v PP (1935), where the court held, applying the literal rule, that ‘rubber’ includes ‘scrap rubber’. Another relevant case is Foo Yoke Ling & Anor v Television & Ors (1985), where the provisions of the Copyright Act 1969 were interpreted by applying the literal rule.

(b) The ejusdem generis rule

This is the rule by which, where a general word follows a class of specific words, the general word is interpreted to refer to words of that class only. This rule was adopted by the High Court in the case of Public Prosecutor v Pengurus Hong Trading & Co (1985), where the relevant part of the statute referred to a prohibition on tea containing any ‘Prussian blue, or lead or any compounds of lead or other matter …’. The question was as to the interpretation of ‘other matter’. The court applied the ejusdem generis rule and held that ‘other matter’ referred to things of the same category as ‘Prussian blue, lead or compounds of lead’.

(c) The mischief rule

This rule facilitates the court to interpret words or phrases which are unclear and ambiguous in the light of the statute as a whole. In such cases the courts will enquire into the ‘mischief’ behind the statute. i.e. the court will look into the overall intention of the legislature as discovered from a reading of the statute as a whole. The matters that the court must consider were laid down in Heydon’s Case (1584) as follows:

(i) What was the common law prior to the Act?

(ii) What was the mischief and deficiency for which the common law did not provide?

(iii) What was the remedy that Parliament had provided for?

(iv) What was the true reason for the remedy?

This rule has been applied by the Malaysian courts in Lim Moh Joo v PP (1970).

In this case the Criminal Procedure Code required the Public Prosecutor (PP) to deliver a copy of a report to the accused not less than ten clear days before the commencement of the trial. The issue was whether the same procedure applied when the prosecution was by a private person. The court held that it did, saying that this was a case where the court must modify the language of the law to meet what must have been the intention of the legislature.

Written & Unwritten Law

Study Guide
1. Define law and distinguish types of law.

Past Year Questions

Dec 2010, Q1

In the context of the Malaysian legal system:
a.explain and distinguish ‘written’ law from ‘unwritten’ law; and 
b.state and explain TWO sources of ‘written’ law and TWO sources of ‘unwritten’ law.

Suggested Model Answer
This question tests the candidates’ knowledge on sources of law.

Malaysian law is derived from both written and unwritten sources. 

• Written law refers to the law that is contained in a formal document and which has been passed by a person or body that is authorised to do so. In Malaysia, which has a written constitution, written law consists of the Federal and State Constitutions, the legislation passed by Parliament and State Legislative Assemblies as well as subsidiary legislation.
• Unwritten law, on the other hand, refers to the law that has not been formally enacted. The unwritten law consists of case law (i.e. decisions of the superior courts which are binding on the lower courts), customary law (i.e. local customs which have been accepted as law by the courts) and applicable principles of English common law and equity.

Sources of written law comprise the following:

• The Federal Constitution - The Federal Constitution is the supreme law of Malaysia. It is a written constitution. It stipulates the powers of the Federal and State Governments and provides for a democratic system of government. It also establishes a constitutional monarchy and entrenches fundamental liberties of the individual. To ensure that the Federal Constitution is not easily amended, a special majority of two-thirds of the total number of members of the legislature is required for an amendment.
• The State Constitutions - Each of the 13 states of Malaysia has its own State Constitution. These contain provisions pertaining to state matters as provided under the Federal Constitution. The State Constitutions deal largely with land matters, agriculture, forestry, local government and Islamic law.
• Legislation - This comprises the laws passed by Parliament as well as the State Legislative Assemblies. The laws passed by Parliament since 1957 (i.e. after Malaya’s independence) are called ‘Acts’ while those passed by the State Legislative Assemblies (except Sabah and Sarawak) are called ‘Enactments’. The laws passed in Sabah and Sarawak are called ‘Ordinances’.
• Subsidiary legislation - This refers to the rules, regulations, by-laws, orders and other instruments made by a person or body in accordance with the powers delegated to him/it under an enabling legislation. Such legislation is an increasingly important source of law because Parliament and the State Legislatures lack the time and expertise to deal with specific technical details.

Unwritten law comprises the following:

• English common law and the rules of equity - This is also a very important source of Malaysian law. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained therein. However, the reception of English law and equity are subject to certain general exceptions. In particular, English law may only be applied where (1) there is no local law governing the matter and (2) if it is suitable to the local circumstances.
• Judicial precedents. - This refers to the law as developed through cases decided in the superior courts. Sometimes referred to as ‘judge-made law’, it is another very important source of law. Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases. This generally ensures a fair and uniform application of the law.
• Islamic law. This is another important source of Malaysian law, particularly in matters relating to marriage, divorce and inheritance among Muslims. It is only applicable to Muslims. Islamic law is administered at State levels by a separate system of courts called the ‘Syariah’ courts.
• Customs. This refers to the customs of the local inhabitants which have been accepted as law. It mainly relates to family matters, e.g. marriage, divorce and inheritance. Generally, the customs of Chinese and Indians relating to marriage and divorce are no longer of much importance since the passing of the Law Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among them. However the customary laws of the Malays (also called ‘adat’ law) and in East Malaysia, native customary law, continue to be important sources of law.

(Candidates are only required to explain TWO written and TWO unwritten sources.)

Legislation And Delegated Legislation

Study Guide

Explain legislation and delegated legislation and its importance including controls over delegated legislation.

Past Year Questions

June 2004 Q1, Dec 2007 Q1, Dec 2009 Q1 

Subsidiary (delegated) legislation, though necessary, needs to be sufficiently controlled. In relation to the Malaysian legal system:
a. explain and distinguish ‘legislation’ from ‘delegated legislation’; and 

b. the advantages/ importance of subsidiary (delegated) legislation,c. its disadvantages and the ways in which it may be controlled.


Suggested Model Answer

This question tests the candidates’ knowledge on the difference between legislation and delegated legislation, as well as of the importance of subsidiary legislation, its disadvantages and the ways in which it is controlled.

a. Legislation Vs Delegated Legislation

• Legislation refers to the laws which have been formally passed by the properly elected bodies, i.e. the Parliament (at the Federal level) and the State Legislative Assemblies (at the State level). Legislation passed by Parliament is generally called an Act of Parliament, while those passed by the State Legislative Assemblies are called Enactments (with the exception of Sabah and Sarawak, where they are called Ordinances).
• Delegated legislation (also known as subsidiary legislation) refers to the rules and regulations, which are passed by some person or body under some enabling parent legislation. The Interpretation Act 1967 defi nes it as ‘any proclamation, rule, regulation, order, bye-law or other instrument made under any Act, Enactment, Ordinance, or other lawful authority and having legislative effect’.

b. Advantages of Subsidiary Legislation
The importance of subsidiary legislation lies in its many advantages, which may be summarized as follows:

• Subsidiary legislation can be passed very speedily as it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, subsidiary legislation can be just as speedily rescinded to meet the changing needs of society.
• Parliament does not have sufficient time to deal with detailed rules necessary to implement the law. Subsidiary legislation fulfils this need.
• Some matters require the special skill and knowledge of experts in that area. Parliament itself may not have sufficient experts for this purpose. Thus, subsidiary legislation fulfils this need as well.

c. Disadvatages of Subsidiary Legislation

However, subsidiary legislation has several disadvantages as well. The main complaints are the following:

• The growth of subsidiary legislation goes against the doctrine of separation of powers.  This is because law is not being passed by persons elected for that purpose (i.e. the legislature). Instead it is being passed by officers of government departments.
• As parliament cannot effectively supervise the making of subsidiary legislation due to lack of time, many rules and regulations may have been passed without proper consideration of some very important factors.
• Too much law is passed through subsidiary legislation. In view of these disadvantages there is a need to control the proliferation of subsidiary legislation. 

d. Forms of Control Over Subsidiary (Delegated Legislation)

Several forms of control over subsidiary legislation have been developed. The following are the main ones:

• Consultation - Prior consultation with relevant advisory bodies and interest groups are quite often required to be had before the finalisation of the subsidiary legislation. Sometimes the parent legislation makes such consultation compulsory. Disregard of this requirement may result in the subsidiary legislation becoming ultra vires and void.
• Parliamentary Control - Parliament may exercise control over subsidiary legislation by repealing the parent legislation or the subsidiary legislation. However this is rarely done. More commonly, the parent legislation will require the rules or regulations made under it to be laid before the legislature. The rules or regulations will become effective if there is no negative resolution against it. Occasionally the parent legislation may require the subsidiary legislation to be subject to an affirmative resolution. In such cases the subsidiary legislation will become effective only when such an affirmative resolution is passed.
• Judicial Review - Where the subsidiary legislation is outside the powers contained in the enabling legislation, the court may declare such legislation as ultra vires the parent legislation and therefore invalid.
• Publicity - As a general rule the subsidiary legislation must be published in the Gazette. It will become effective only from the date of such publication or on such other date as may be specified.