FACULTY OF LAW

MALAYSIAN LEGAL SYSTEM (LAW434)

GROUP ASSIGNMENT

NAME(S) OF THE STUDENT(S) & MATRIX NUMBER:

1. AFZAN BINTI SOHAIME (2023556325)

2. ANITH BALQIS BINTI RAMLI (2023585539)
3. NURUL DARWISYAH BINTI ZANAFFERULLAH (2023569957)

CLASS: LWSS1AX

LECTURER’S NAME: SIR ABANG IKHBAL BIN ABANG BOLHIL

QUESTION 1
Illustrate the major control for Delegated Legislation in Malaysia.

ANSWER :

Malaysia practices the mixed legal system which includes the Common Law, Islamic
law and Customary Law. The Malaysian Legal System is based on English common law. The
sources of Malaysian law means the legal rules that make the laws in Malaysia, which can be
classified into written and unwritten law.Written law is the most important source of law. It
refers to the laws contained in the Federal and State Constitutions and in a code or a statute.
The written laws are much influenced by English laws as the Malaysian legal system retains
many characteristics of the English legal system. The Written law includes the Federal
Constitution, State Constitutions, Legislation and Subsidiary legislation. Malaysia is a
Federation of thirteen States with a written constitution, the Federal Constitution, which is the
supreme law of the country. The Constitution can only be changed by a two-thirds majority of
the total number of members of the legislature. The Federal Constitution comprises many
Articles concerning the religion of the federation, citizenship, supreme law of the Federation
and many other related subjects. Besides the Federal Constitution, there is a state constitution
where each state has their own constitution regulating the government of that state.

Legislation is the law enacted by the legislature, and by bodies and persons authorized
by the legislature. Legislation enacted by the legislature is referred to as primary legislation;
that made under power delegated by the legislature is called delegated or subsidiary or
subordinate legislation. In Malaysia, the power to enact law is vested in Parliament at the
federal level and the State Legislative Assembly at the state level. As Malaysia has a written
constitution which is the supreme law of the federation, Parliament and the State Legislative
Assembly are not supreme. They can enact law only within the limits and in the manner
prescribed by the Federal and State Constitution. Section 3 of the Interpretation Acts defines
subsidiary legislation as ‘any proclamation, rule, regulation, order, notification, by-law, or
other instrument made under any Act, Enactment, Ordinance or other lawful authority and
having legislative effect.’

Delegated legislation, also referred to as secondary legislation, is legislation made by a

person or body other than Parliament. Parliament, through an Act of Parliament, can permit
another person or body to make legislation. An Act of Parliament creates the framework of a
particular law and tends only to contain an outline of the purpose of the Act. By Parliament
giving authority for legislation to be delegated it enables other persons or bodies to provide
more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act
of Parliament), permit others to make law and rules through delegated legislation. The
legislation created by delegated legislation must be made in accordance with the purposes laid
down in the Act. As for the example of Eng Keock Cheng v. Public Prosecutor, the Federal
Court held that delegated legislation may still be valid, notwithstanding that it is inconsistent
with the Constitution. The legislation created by delegated legislation must be made in
accordance with the purposes laid down in the Act. This legislation is an attempt to regulate
very complex matters such as employment, social security, tax liability and economic
management. It is void if it contravenes the parent Act or the Constitution.

One of the functions of Delegated Legislation is to allow the Government to amend a

law without having to wait for a new Act of Parliament to be passed. Furthermore, Delegated
Legislation can be used to make technical changes to the law, such as altering sanctions under
a given statute. Delegated Legislation allows law to be made by those who have the relevant
expert knowledge. A particular Local Authority can make a law to suit local needs and that
Local Authority will have the knowledge of what is best for the locality rather than Parliament.
Besides that, Delegated Legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of legislation, which makes it flexible and very
useful to law-making. The need for delegated legislation arose from the increased role of
government in the affairs of its citizens. Traditionally, the government was concerned only with
public affairs, that is public administration and the keeping of public order and maintaining the
public interest. Thus, the government’s role was traditionally that of policing the citizens,
defender of the realm, keeper of the exchequer and other similar functions.

JUDICIAL CONTROL OVER SUBSIDIARY LEGISLATION

Judicial control or review is the most important of the controls. In Malaysia, the
foundation for such review lie is ss 23(1) and 87(d) of the Interpretation Acts 1948 and 1967
which, in effect, lay down the principle that any subsidiary legislation which is inconsistent
with an Act of Parliament or State Enactment (including the enabling statute) shall be void to
the extent of the inconsistency. The courts have control over subsidiary legislation through
judicial review. When in an action, a defence is raised by the accused or defendant or a
challenge is made by an aggrieved person concerning the validity of the subsidiary legislation,
the courts may declare the exercise of the delegated power and the subsidiary legislation void
under the ultra vires doctrine on either one of two grounds: Substantive or Procedural.

In substantive ultra vires, the recipient of the delegated power has made law beyond
the limits of the power conferred either in terms of the subject-matter, purpose or circumstances
authorized by the enabling statute. For example, in Major Phang Yat Foo v Brigadier General
Dato’ Yahya bin Yusof & Anor [1991] MLJ 252, the respondent, the conveying authority of a
court martial, purporting to act under r63(3) of the Armed Forces (Court Martial) Rules 1976,
disapproved of and dissolved, the decision of that court martial and made an order for a fresh
court martial to be convened and for the applicant to be retried on the same charges. In
procedural ultra vires, the recipient of the delegated power has failed to follow a mandatory
procedure laid down in the enabling statute. For example, to give notice to affected parties to
allow them to make objections before granting planning permission. In Datin Azizah bte Abdul
Ghani v Dewan Bandaraya Kuala Lumpur [1992] 2 MLJ 393, concerning a developing order
made under s 22 of the Federal Territory (Planning) Act 1982 (Act 267), granting planning
permission for the building of two blocks of apartments on piece of land in an exclusive
residential area, the Supreme Court quashed the order as on the facts, no one notice of the
application for planning permission as required under r 5 of the Planning (Development) Rules
of 1970 (which continues in force as if made under the 1982 Act) had been sent to the appellant.
A notice had been sent to her but due to the negligence of the officer concerned, it was sent to
the wrong address. In Pengarah Tanah dan Galian Wilayah Pesekutuan v Sri Lempah
Enterprises, Raja Azlan Shah FJ said :

Unfettered discretion is a contradiction in terms … Every legal power must have legal
limits, otherwise there is dictatorship.

Control over abuse of power is achieved principally by the application of the doctrine
of ultra vires, that is, no one may overstep the boundaries of the power conferred upon him to
do or abstain from doing any particular act. If he does so, then his action can be declared by
the courts to be ultra vires or beyond his legal powers, and therefore void. Similarly, a delegated
legislation can be declared to be ultra vires when the delegated legislation goes beyond the
scope of the authority conferred by the parent statue. For example, if power is conferred to
legislate only with respect to certain topics or certain purposes or in certain circumstances, then
the authority must keep within the limits of that power and not cross it. This is known as
‘substantive ultra vires.’ If the subsidiary legislation was made without adhering to any
prescribed procedure, such legislation could also be attacked on the ground of ‘procedural ultra
vires’.

No legislation, whether it be a parent statue or a subsidiary legislation, would be valid

if it contravenes the Federal Constitution. In Osman v Public Prosecutor,the validity of certain
regulations made under the Emergency (Essential Powers) Act 19964 was challenged as being
unconstitutional because they were contrary to Article 8 of the Federal Constitution which
guarantees equality before the law. However, the Privy Council decided that the regulations
were valid because they were promulgated under Emergency Powers of the Federal
Constitution under Article 150, and particular Article 150(6) provides that no provision of any
Act of Parliament which declares that the law appears to Parliament to be required by reason
of the emergency, shall be invalid on the ground of inconsistency with any provision of the
Constitution.
 In Port Swettenhem Authority v TW Wu & Co Sdn Bhd, section 29 (1)(g) of the Port
Authorities Act 1963 authorized the Authority to make by-law for ‘limiting the liability of the
Authority in respect of any loss … occurring without the actual fault or privity of the Authority
…’ Under this power, the authority made a by-law to the following effect : ‘The Authority shall
not be liable for any loss … of … goods … from any cause unless such loss has been caused
solely by the misconducts or negligence of the Authority or its officers or servants.’

The Privy Council held that the by-law was ultra vires the Authority, because under
section 29(1)(g) there was no power in the Authority to make a by-law limiting its liability in
respect of any loss occurring with its actual fault or privity, and that is precisely what the by-
law sought to do. Secondly, the by-law did not only limit, but it wholly excluded the Authority’s
liability for the loss of any goods caused by its own misconduct or negligence. This went far
beyond what was authorized under section 29(1)(g) of the Act.

The principle that a subsidiary may not be ultra vires the parent Act is embodied under
section 23(1) of the Interpretation Acts, which declares that any subsidiary legislation that is
inconsistent with an Act (including the Act under which the subsidiary legislation was made)
shall be void to the extent of the inconsistency.

LEGISLATIVE CONTROL OVER SUBSIDIARY LEGISLATION

Besides, judicial control through the doctrine of ultra vires, several other methods of
control over subsidiary legislation are available. Through the laying procedure for example,
the subsidiary legislation made or proposed to be made may be laid before Parliament so that
the House will be duly informed of the actions or proposed actions of the executive. This
‘laying’ could be a simple laying which would be purely informational, or the procedure could
be coupled with power on the part of the House to annul a subsidiary legislation found to be
objectionable. Examples of the simple laying procedure can be found under some statues in
Malaysia :
(i) Section 8(2) of the Summonses and Warrants (Special Provisions) Act 1971 :

Any rules made under this section shall be laid before each House of Parliament.

(ii) Section 36(2) of the Financial Procedure Act :

Regulations made under this section shall when made have full force and effect and shall be
laid before the Dewan Rakyat as soon as possible after they are made.

There are several means by which the legislature exercise control over subsidiary legislation.
The legislature which grants the delegated powers by an enabling statute may repeal the statute
or revoke or vary the delegated powers. An enabling statute may require legislation made under
it to be laid before the legislature, either for the legislature’s information or confirmation. In
Malaysia, ‘laying provisions’ are not very common. Example of a simple laying formula are to
be found in s 83(3) of the Trade Marks Act 1976 (Act 175), which requires subsidiary legislation
made there under to be laid before both Dewan and s 58(4), Trade Unions Act 1959 (Act 262)
(Revised 1981), which requires the subsidiary legislation to be laid before the Dewan Rakyat
only. The laying procedure for confirmation by the legislature may be the way of a negative or
affirmative resolution. In the negative resolution procedure, the subsidiary legislation is
effective unless the legislature passes a resolution annulling it. An example is contained in s
19(3) of the Control of Imported Publications Act 1958 (Act No 44 of 1958). While the
affirmative resolution procedure is the more effective method of control, the subsidiary
legislation ceases to have effect unless within the prescribed period, the legislature passes a
resolution affirming it. Section 15(1) of the Sales Tax Act 1972 (Act 64) bears an example.

In conclusion, there are controls in place in relation to delegated legislation to ensure

that those who make law under it are doing it in an appropriate manner. Parliament exercises
control over delegated legislation in that when the Act of Parliament is created, Parliament
stipulate in the Act of Parliament the parameters with regard to delegated legislation. Further,
there are scrutiny committees which consider delegated legislation within a Bill as it passes
through the Houses of Parliament. Delegated legislation is also subject to control through the
Court. A piece of delegated legislation can be deemed by the Court to be ultra vires. This means
that the body that created the delegated legislation acted beyond the powers conferred to them
by statute. An example where a body would have acted ultra vires would be if the delegated
legislation goes beyond what Parliament intended or where the procedural rules to be followed
in relation to the delegated legislation have not been followed. Any Court action which is
brought challenging delegated legislation is done through the means of Judicial Review. If the
Court finds that a piece of delegated legislation is ultra vires then that legislation can be
declared void.

QUESTION 2
The interpretation of statute involves different approach with their own set of procedures,
identifies and distinguished three (3) main Common Law Rules that help the court in statutory
interpretation. Relevant case for example is mandatory.

ANSWER :

The task of judges in statutory interpretation is to ascertain the intention of the

legislature. In this task, judges in Malaysia are assisted by statutory and common law rules.
The principles evolved by the courts in England in interpreting statutes are adopted and applied
with local modifications by the Malaysian court interpreting local legislation. These principles
incorporate so-called ‘rules’ of statutory interpretation, language rules and internal and external
aids to interpretation. The so-called ‘rules’ are the primary aids to statutory interpretation while
the rest are the secondary aids.

Statute law is law which is written and that is set in place by a legislature. Statute law
may be used to extend, overrule or modify existing meanings of current common law. As well
as this, entirely new laws can be created in statutes, traditionally, there are three ‘rules’ or
canons of statutory interpretation, each of which evolved during different phases of English
legal history. They are not rules in the strict sense because they have no binding force and there
is no obligation upon judges to apply these or, when applying them, to do so in any order or
priority. They are only guidelines for judges; hence it would be more helpful to regard them as
approaches. Which approach is adopted in a particular case depends on the individual judge’s
belief concerning the judicial function. In law, there are three main rules of interpretation of
statue: the Literal Rule, the Golden Rule and the Mischief Rule, and also the integrated
approach known as the Purposive Approach.

The Literal Rule gives effect to the plain ordinary meaning of words that are used.
Where there is no ambiguity, the words used convey the intended meaning - no more, no less.
The Golden Rule is used where the Literal Rule would result in an absurdity or an appalling
result. In such situation, the court investigates whether the statute wording conveys the
parliament's intention. The Mischief Rule allows judges slightly more discretion. It looks at the
gap or the mischief the statute was intended to cover and apply a ruling that remedies the
problem in ambiguous statutes. The Purposive Approach is one that will promote the general
legislative purpose underlying the provisions.

First, the Mischief Rule. This is the oldest approach, dating from Heydon’s case (1584)
3 Co Rep 7. It was laid down in that case that for the true interpretation of statutes, the court
had considered what was the common law before the act, what was the mischief and detect for
which the common law did not provide a remedy, what remedy had Parliament decided upon
to cure the mischief and what was the true reason for the remedy. The duty of the court then is
to make such construction as shall suppress the mischief and advance the remedy. The rule in
Heydon’s case, as it is sometimes called, was explicitly adopted in Hong Leong Equipment Sdn
Bhd v Liew Fook Chuan and Another Appeal [1996]1 MLJ 481, which concerned the
interpretation of Section 30(3) of the Industrial Relation Act 1967 (Act 177) (Revised 1976).
That section confers upon the Minister of Labour and Manpower the discretion whether to refer
an industrial dispute to the Industrial Court. One of the issues was whether in exercising his
discretion, the Minister made a decision in legal sense and was, therefore, subject to juridical
review. The Court of Appeal decided in affirmative. Gopal Sri Ram JCA, delivering the main
judgement, approached the task of interpretation by examining the position at common law and
the legislative history of the Act, an approach taken from Haydon’s cases. The Act was intended
by Parliament to elevate the weak and subordinate position of a workman at common law to a
much stronger position. Parliament wanted to alter the employer-workman relationship, which
was a consensual one, capable of termination by the employer at will, to one which gives the
workman security of tenure by equating the right to employment with a proprietary right that
may not be forfeited, except for just cause.

Second, the Literal Rule. This has been the dominant approach in the past one hundred
years or so. It developed in England in the early nineteenth century. One of the main reasons
for its adoption is said to be the length of legislation by comparison with earlier times. If
legislation is drafted at length and in detail, this suggests that the legislature has expressed its
intention fully in the words used and there is no need to imply any additional meaning. The R
V Harris case (1836), where the defendant bit the nose off the victim. The statute stated the
offence was ‘to stab or wound’. Under The Literal Rule, biting is not stabbing, cutting or
wounding (implying the use of an instrument). The defendant was proven not guilty. According
to this approach, the words in a statute must be given their literal or in simple language. This
approach (and its effect) was starkly illustrated in Public Prosecutor v Chin Kim Foo. The
copyright in the sound recording of two titles, which were first published in Malaysia on 14
and 18 July 1988 respectively, was infringed on 19 July 1988. The defendant contended that
copyright only subsisted from 1 January 1989 which is the beginning of the calendar year
following the year in which the sound recordings were published. That submission was based
on s 19 of the Copyright Act 1987 (Act 332), “Copyright in a sound recording shall subsist
until fifty years from the beginning of the calendar year next following the year in which the
recording was first published”. The Session Court accepted that submission. The learned judge
acknowledge that such an interpretation led to an absurdity but said the clear words of s 19 did
not allow her to reach any other conclusions. Her decision was upheld on appeal.

Third, the Golden Rule. This is a relaxation of the literal approach. The golden rule,
called such by Lord Wensleydale, is best explained in his own words in Grey v Pearson [1857]
6 HL Cas 61, 106, “...in construing wills and indeed statutes, and all written instruments, the
grammatical and ordinary sense of the words is to be adhered to unless that would lead to some
absurdly, or some repugnance or inconsistency with the rest of the instrument...”. This
approach was adopted in Leaw Mei Lee v Attorney General & Ors [1967] 2 MLJ 62, which
centred on the interpretation of s 5(3) of the Advocates and Solicitors Ordinance 1947 (MU
Ordinance No 4 of 1947). That section was concerned with fixing the period of local
chambering, which is a prerequisite for admission to the bar as an advocate and solicitor. It was
determined that ‘period’ meant any chambering previously undergone in England. The issue
which arose was whether the University of Malaya post-final course must precede the local
chambering, having regard to the word ‘previously’. The petitioner attended that course and
chambered concurrently. Her position for admission was objected by the Bar Council, the Bar
Committee and the Attorney General. The objection was also upheld by the High Court. The
Federal Court faced two alternatives, (1), to give a literal interpretation (as did the High Court),
with the result that chambering after completing the post-final course would qualify the
petitioner for admission, but chambering concurrently with the course would not or (2), an
alternative interpretation which would avoid such an absurd or unjust result. The Federal Court
chose the latter.

Overall, when comparing the three rules there are differences and similarities. The
Literal Rule is the basis of all cases. By providing no scope for the judges input, it upholds the
separation of powers and respects parliamentary supremacy. However, its inflexibility can also
create injustices. The Golden Rule tries to compliment the Literal Rule by allowing judges to
change the meaning of statutes in order to give justice. However, this infringes the separation
of powers. The Mischief Rule gives the most discretion to judges and is suited to specific, often
ambiguous cases. The rule allows statutes to be refined and developed. However, the increased
role of the judge means that his views and prejudices can influence the final decision. Although
the Malaysian courts have tended towards a more purposive method of construction in the
recent years, the underlying and general approach towards statutory construction is summarised
in this unified approach; and its application, varied in regards to the factual circumstances
surrounding each case. Despite the vast array of approaches, it is both possible and convenient
to combine these contradictory theories into one coherent approach to interpretation. This
unified approach brings together the best of the rules, placing utmost and equal importance on
both the plain words of an Act and the purpose for which the Act was created, read in the
context of the current law and taking into account the status of the law prior to enactment, the
underlying tenet, being to discover legislative intent and to uphold the principles of the Federal
Constitution.