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.

Case Law & Precedent

Study Guide

1. Explain what is meant by case law and precedent in the context of the hierarchy of the courts including the importance and operation of the doctrine of binding judicial precedent.
Past Year Questions
June 2008 Q1, June 2011 Q1

In the context of the Malaysian legal system:
a. Explain how the doctrine of judicial precedent operates. 

b. State TWO advantages of the doctrine of judicial precedent.

Suggested Model Answer

This question tests the candidates’ knowledge of the advantages and operation of the doctrine of binding judicial precedent in Malaysia.

The doctrine of binding judicial precedent is a doctrine which requires decisions of higher courts to be followed by courts which are lower in the hierarchy of the court structure. It must be noted that it is actually the ratio decidendi that binds future courts. The ratio decidendi refers to the rationale or principle of law on which the decision is based. The ratio decidendi must be distinguished from obiter dicta, which refers to opinions or other matters expressed by the judge, which are not directly relevant to the case before him. In order to better understand the operation of the doctrine, the hierarchy of the courts must be borne in mind. The Federal Court is the highest court in Malaysia. Below it is the Court of Appeal. Below the Court of Appeal is the High Court. Below the High Court are the lower courts comprising the Sessions Courts, Magistrates’ Courts and the Penghulu’s Courts, which are referred to as the Subordinate Courts.

a. The doctrine operates as follows:

• Decisions of the Privy Council (which was formerly the highest court of appeal for Malaysia) given on appeal from Malaysia or from another Commonwealth country where the law is in pari materia to Malaysia are binding on the Malaysian courts. See: Khalid Panjang and Ors v PP [1964] MLJ 108. D.G.I.R. v Kulim Rubber Plantation Ltd [1981] 1 MLJ 214.
• Decisions of the Federal Court (the highest court in Malaysia) are binding on all courts below it. In the same way as the House of Lords of England is not bound by its own decisions, the Federal Court is also not bound by its own decisions and may depart from them. See: Arulpragasan v Public Prosecutor [1997] 1 MLJ 1. However, this will only be sparingly done. See: Tunde Apatria v Public Prosecutor [2001] 1 MLJ 259.
• Decisions of the Court of Appeal will be binding on all the courts below it. As this court’s position is analogous to the Court of Appeal of England, it is bound by its own previous decisions to the same extent as the latter. See: Young v Bristol Aeroplane Co Ltd [1944] K.B. 718.
• Decisions of the High Court are binding on all Subordinate Courts, but one High Court judge is not bound to follow the decision of another. See: Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211. Subordinate Courts are bound by precedents laid down by the Superior Courts but their own decisions do not bind any court.

b. The advantages of the doctrine of judicial precedent are the following:

• It helps to achieve certainty and uniformity in the law as like cases will be treated alike.
• The law developed through the cases is more practical as it is based on actual situations rather than on hypothetical ones.
• Flexibility in the application can also be achieved. Although judges of the lower courts are generally bound by the decisions of the higher courts, they do not always have to be so. For example, a judge may avoid following an earlier precedent if the case was decided ‘per incurium’ i.e. without taking into account a relevant legal principle or statute. He could also avoid it by distinguishing the precedent from the facts of the present case. This flexibility allows the law to be adapted to the changing needs of society.

Court Structure

Study Guide

1. Explain the structure and operation of the courts.

Past Year Questions

Dec 2003 Q3 , Dec 2005 Q1, Dec 2008 Q1, June 2011 Q1

a. Describe the structure of Malaysian Court System explaining the judicial composition of each court (the hierarchy of the Malaysian courts)  and

b. Explain the advantages of having a hierarchy of courts.

Suggested Model Answer

This question tests the candidates’ knowledge on the structure of the court system in Malaysia and the advantages of having a hierarchy of courts.

a) The court system in Malaysia, was last restructured by the Constitution (Amendment) Act 1994. The present court structure, which has been in force since then, is as follows:

• The Federal Court stands at the apex of the Malaysian court system. It is headed by the Chief Justice.

• Below the Federal Court is the Court of Appeal. This court is headed by the President of the Court of Appeal.

• Below the Court of Appeal are two High Courts with co-ordinate jurisdiction. One is the High Court of Malaya which serves Peninsula Malaysia, while the other is the High Court of Sabah and Sarawak, which serves East Malaysia, i.e. Sabah and Sarawak. Each of the High Courts is headed by a Chief Judge.

• Below the High Courts are the Subordinate Courts, the highest of which are the Sessions Courts, each of which is headed by a Sessions Court Judge. 

• Below the Sessions Courts are the Magistrates’ Courts, each of which is presided over by a magistrate. Parallel to the Magistrates’ Court is the Juvenile Court (Court For Children) which is also presided over by a magistrate.

• In Peninsular Malaysia (West Malaysia) there are provisions for Penghulu’s Courts below the Magistrates’ Courts. These are headed by a penghulu or village headman. He has very limited jurisdiction and usually deals with local disputes in an informal manner. However, in practice, these courts hardly function.

• There are also the Native Courts and the Syariah Courts. These courts operate only at the State level. The Native Courts exist only in Sabah and Sarawak and they deal with native rights while the Syariah Courts deal with matters pertaining to Islamic law in the respective states.

b) Having a court system with a hierarchy of courts has various advantages. These may be summarized as follows:

• It facilitates a system of appeals. The court hierarchy distinguishes between higher and lower courts so that persons who are dissatisfied with the decision of a lower court have an avenue to have the decision reviewed by a higher court.

• It facilitates the application of the doctrine of binding judicial precedent which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in the application of the law.

• It facilitates specialization in the judicial process. The higher courts which are presided by more senior and experienced judges handle the more serious criminal offences such as murder, and kidnapping and more serious civil matters where larger sums of money are involved. The lower courts are left to handle the less serious offences and civil disputes involving smaller amounts of money.

• It results in greater administrative convenience, efficiency and cost effectiveness. The practical effect of a court hierarchy is that it provides for an extensive system of lower courts dispensing justice inexpensively in local areas and superior courts in the main centres.