Lecture 1

Malaysian Law

  • Definition of Law:

    • Article 160 of the Malaysian Federal Constitution defines "Law" as encompassing:

      • Written law

      • Common law

      • Custom or usage

The Court Structure

  • Hierarchy of Courts in Malaysia:

    • Federal Court

    • Court of Appeal

    • High Court

    • Sessions Court

    • Magistrates' Court

Common Law in Malaysia

  • Reception and Development:

    • The debate regarding Malaysia's connection to English law continues.

    • Malaysian legal system has benefited from ties with English law, aiding development.

    • The article argues against abolishing Section 3 of the Civil Law Act 1956, which allows the reception of English law in Malaysia.

      • Claim that it hinders the development of Malaysian common law is considered unfounded.

    • Calls for amendments to Section 3 to improve and streamline English law reception and enhance Malaysian common law development.

Civil Law Act 1956 (Act 67)

  • Key Provisions of Section 3:

    • General Application of English Law:

      • Peninsular Malaysia:

        • Common law of England and the rules of equity as administered on 7 April 1956.

      • Sabah:

        • Common law and equity as of 1 December 1951.

      • Sarawak:

        • Common law and equity as of 12 December 1949.

      • Application is subject to local circumstances and necessary qualifications.

Legislation and Interpretation

  • Need for Interpretation:

    • Challenges in discerning Parliamentary intent.

Tools of Interpretation

  • Types of Aids:

    • Intrinsic Aids:

      • Although not specified, these assist in interpreting the statute itself.

    • Extrinsic Aids:

      • External references that help clarify statutory meaning.

    • Judicial Principles:

      • Principles established by courts that guide interpretation.

Example: The Mischief Rule

  • Function of the Judge:

    • To construct laws that suppress mischief and promote remedies.

    • Case Reference:

      • Smith v Hughes ([1960] 2 All E.R. 859):

        • Context: Statute prohibiting solicitation in the street.

        • Situation: Defendants soliciting from balconies; claimed not guilty since they were not "in the street."

        • Conclusion: Judge applied the mischief rule, holding them guilty as intended by the statute to address public harassment.

Additional Case for Study

  • PJD Regency Sdn Bhd V. Tribunal Tuntutan Pembeli Rumah:

    • Court: Federal Court, Putrajaya on 19 January 2021.

    • Key Issues:

      • Land law and the implications of timely delivery of vacant possession.

      • Examination of Liquidated Ascertained Damages (LAD) claims.

      • Interpretation of Housing Development (Control and Licensing) Act 1966 and its relevance to statutory interpretation and social legislation.