LAW 434 PAST Years Answer Scheme PDF

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LW224 PART A (6 MARKS) Describe various sources of law during the Malacca Sultanate. (LAW 431 – Section A – Q 2: OCT2009 – 6 marks) Sources of law refer to the places where the law can be found and the origin where the law gets its authority. There are two types of source of law, which are the writt...

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LW224

PART A (6 MARKS) Describe various sources of law during the Malacca Sultanate. (LAW 431 – Section A – Q 2: OCT2009 – 6 marks) Sources of law refer to the places where the law can be found and the origin where the law gets its authority. There are two types of source of law, which are the written and unwritten law. During the Malacca Sultanate, there was already a system of law and order established by the ruler of that time in order to protect the interest of traders and govern different group of people. For the written law, there were two legal digests in the Malacca Sultanate, which are Hukum Kanun Melaka and Undang-Undang laut Melaka. Hukum Kanun Melaka covered a wide range of constitutional, civil and criminal matters. There was no clear demarcation between them or between the secular or religious. The UndangUndang Laut Melaka, as its name indicates, covered largely maritime matters. For the unwritten law, the source of law during Malacca Sultanate before coming of Islam is Malay adat law, specifically adat temenggung. Adat temenggung is based on patrilineal tradition and since it comes from Palembang, it received influence of Hindu tradition and its customary law. The adat temenggung was the law of the sultan and, therefore, autocratic in nature. At the time of its founding by Parameswara around 1400, Malay adat law incorporating Hindu-Buddhist elements was originally applied. The coming of Islam saw the beginning of attempts to introduce Syariah law and to modify Malay adat law to accord with Islam. The process of Islamization can be seen through the use of various sources such as Al Quran, as sunnah, qiyas and ijmak.

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Describe the administrative structure during the reign of the Malacca Sultanate. (LAW 431 – Section A – Q 5: OCT2006 – 6 marks) Malacca is an important port therefore there is a need for a law and order and a systematic administrative structure to govern the administrative matters in Malacca. By 1500, the Malacca Sultanate had administrative structure that was to be the model for the later Malay states. At the apex of its administrative reign is the Sultan or the Ruler. The sultan has absolute power and practices absolute monarchy. Sultan is the head of the state and head of the government. Below the Sultan is Bendahara, who combined the offices of the modern prime ministers, chief justice and commander-in-chief of the army. Bendahara, acted as the advisor to the Sultan, will assist the Sultan in the administration matters and also lead other minister. Next in prominence was the temenggung, who was the chief of police and chief magistrate, who was responsible in apprehending criminals, maintaining prisons and keeping the peace. Below him was the laksamana, the admiral of fleet. A Laksama ‟s authority is paramount. He was the head of the navy and also chief emissary of the Sultan. He ensured that the Malacca Straits was safe and enforced the Undang-Undang Laut Melaka . Malacca ‟s most prominent Laksamana was the legendary Hang Tuah. Below the laksamana was the syahbandar or the harbor masters. There were four shahbandar to attend to four main group of traders which are from China and Far East; from Java and the Malay Archipelago; from west India; and from southeast India.

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Describe the legal system and the sources of law that were applied during the Malacca Sultanate. (LAW 431 – Section A – Q 1: APR2005 – 5 marks) Malacca Sultanate applied the mixed legal system. Firstly, Malacca applied the civil law system. For this system, every law of the country is codified and written into the law. For example, there were legal digests in Malacca Sultanate which are Hukum Kanun Melaka and Undang-Undang Laut Melaka. Besides that, Malacca Sultanate also applied the Islamic law legal system. After the coming of Islam, Malacca introduce the Syariah law and to modify Malay adat law to accord with Islam. For examples, earlier versions of the Hukum Kanun Melaka set out adat law whereas latter versions show a mixture of adat law and principles of Syariah. Last, Malacca Sultanate also applied customary law. The law applicable was Malay adat law, specifically adat temenggung which is based on patrilineal tradition. However, adat temenggung came via Palembang and was so altered under Hindu influence there that it lost so much of its original matrilineal elements. The adat temenggung was the law of the sultan and, therefore, autocratic in nature.

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Outline the provisions of the Charter of Justice 1826. (LAW 434 – Sec A/Q1/ Oct 2010 – 6 marks) Royal Charter of Justice refers to the permission granted by British Crown for a statutory reception which gives power to the East India Co. to operate a competent English legal system and establish reception of English common law. The first Charter of Justice was granted in 1807 for a statutory reception of English law in Penang. The Charter of Justice 1826 was the second royal charter of justice. This Charter was granted in order to resolve the initial uncertainties as to the extent of English Law to be applied in Malacca. This second charter in 1826 extends the hand of English common law to the territory of Malacca and Singapore while Penang receives English law for second time. A new court called “The Court of Judicature of Prince of Wales ‟ Island, Singapore and Malacca” was created by this Charter. Its jurisdiction was similar to that granted to Penang by the 1807 Charter but the English Law to be applied was at it stood in November 27, 1826 and subject to local conditions. Under this charter, a professional judge, known as the Recorder was appointed. He was assisted by lay judges, an ordinary person. All the Recorders who were sent to dispense justice made Penang their headquarters, visiting Singapore and Malacca only twice a year.

The first royal Charter of Justice of 1807 Complaints and petitions were made over many years for a better system of administering justice and they were finally heeded more than twenty years after the founding of the island. It came in the form of a Royal Charter of Justice of 1807. The Charter is the most significant event in the Malaysian legal history as it marked the beginning of the statutory introduction of English Law into this country. The Charter established “The Court of Judicature of Prince of Wales Island” (as Penang was then known) to exercise jurisdiction in all civil, criminal and ecclesiastical matters. It was

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interpreted by the courts as introducing to Penang the law of England as it stood in 1807 in so far as it was suitable to local conditions and circumstances.

The third Royal Charter of Justice of 1855 A third Charter of Justice was granted in 1855 in recognition of the changes and inadequacies of the system. It was due to the increasing number of cases for trial and the system was ill-equipped to cope with the rapid changes brought on by booming economy, especially in Singapore. This third Charter enabled the reorganization of the court system. An additional Recorder was appointed for Singapore and the jurisdiction of the Recorder in Penang was extended to Province Wellesley, a mainland settlement across the island. Since the court had two divisions, separate Registrars were appointed for each of the divisions. However, the transfer of the administration of the Straits Settlements from India to the Colonial Office in 1867 made it necessary to reorganize the court system once again.

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Briefly explain how English Law was applied in the Malay States. (LAW 431 – Sec A/Q1/ Nov 2005 – 5 marks) British intervention in the Malay states began in the second half of the nineteenth century. The Malay Ruler concluded treaties of various dates, but similar form, with the British whereby, the Malay Rulers, in return for British protection against internal attack, agreed to accept British advisers. Through the Residential System, the British imposed indirect rule over the Malay States. English Law was introduced informally and indirectly through the Residential System in two ways which are the enactment on the advice of the British administrators and the decisions of the courts established by the British administrators. Under this system, each Sultan accepted a British Resident whose advice had to be asked and acted upon in all matters of administration and revenue, except Malay religions and customs. The Rulers were retained as sovereigns but actual government was in the hands of British Residents. In 1895, four states, which are Perak, Selangor, Negeri Sembilan and Pahang were brought together in a federation called the Federated Malay States. The four British Residents were placed under a Resident-General responsible to the Governor of the Straits Settlements who was designated High Commissioner of the Federation. The other five Malay States; Johor, Terengganu, Perlis, Kedah and Kelantan were called the Unfederated Malay States. They received the reception of English law through the British Advisers and when the Federated Malay States enactment was extended to them by the Civil Law (Extension) Ordinance 1951.

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Briefly explain the effects of the residential system on the adoption of English law in the Malay states. (LAW434-Section A-Q4:JAN2013 – 6 marks) By 1888, the British managed to control Perak, Selangor, Pahang and Negeri Sembilan and these states are known as Federated Malay States. British introduced a sophisticated system of indirect rule known as Residential System. However, this system gives some effects specifically on the adoption of English Law on the Malay states. The first effect is the reception of the English Law to the Federated Malay state. Under this system, each Sultan has to accept a British Resident whose advice had to be asked and acted upon in all administrative matters except related in Islam and Malay customs. In this system, the actual government was in the hand of British residents which were responsible to the Governor of Straits Settlements. Basically, it can be conclude that this system open the door for the English law in these four states in just strokes of signs. Besides that, the British Residential system also promotes uniformity of law since the law applied for the administration is the English law and not different set of laws previously operated in the Straits Settlement and the power of administration of justice is under British Resident. Next, the effect of British residential system has weakened the force of the local law such as Syariah law and the Malay customary law as English law became the main and basic law of the land. Even though the British residents does not have powers in matters related to Islam and Malay customs, the reception of English law to some extent weakened these two laws since the area of law govern by the local law is not the same as before the application of English law.

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Define „customary law‟ and explain the sources of law. (LAW 431 – Sec A/Q2/Apr 2010 – 6 marks) Customary law is a regular pattern of social behavior which has been accepted by the bulk of a given society as binding upon its members. These are customs which the courts will enforce. Thus, customary laws are customs which have legal consequences. There are a few sources of customary law. First, customary law is derived from Malay adat law. Malay adat in Peninsular is commonly divided into two contrasting systems, which are adat perpatih and adat temenggung. Adat perpatih is characterized as democratic because it exists on a peasant society, one that is organized matrilineally. Conversely, adat temenggung is

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aristocratic, autocratic and patrilineal. Second, customary law is also derived from Chinese customary law. However, there was problem to ascertain the substantive principle of law as there was neither precedents form China nor authoritative texts to fall back on. Thus, the courts created a uniform body of Chinese customary law which they applied to all persons of Chinese race, regardless of their religion or domicile. For instance, the courts recognized the Chinese practice of polygamous marriage. Third, customary law is also derived from the Hindu customary law. The development of Hindu customary law in the Malay Peninsula can be seen as an extension and adaptation of Hindu customary law in India. Last, source of customary law is also derived from native law of Sabah and Sarawak. The application of customary laws in Sabah and Sarawak is more extensive and systematic compared to in the Malay peninsula. Sabah and Sarawak have a long history of codification of customary law. For example, there is UndangUndang Mahkamah Melayu Sarawak.

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Briefly explain TWO (2) effects of the law Reform (Marriage and Divorce) Act 1976 on the Chinese and Hindu customary laws. (LAW 431 – Sec A/Q4/ Apr 2009 – 6 marks) The coming into force of the law Reform (Marriage and Divorce) Act 1976 on 1 March 1982 on the Chinese and Hindu customary laws has several effects. First, the polygamous marriage among the Chinese and Hindu people is abolished. There is no more practice of polygamous marriage among this people since section 5 and 6 of this Act introduced monogamy to all people specifically to Hindu and Chinese community. The new provisions forbid any person who is already lawfully married from contracting a further marriage during the continuance of the existing marriage. All marriage taking place on or after 1 march 1982 must be monogamous. According to section 494 of the CPC, practice of polygamous is punishable offence up to 7 years imprisonment. The second effect of this Act is that there is a practice of compulsory registration. The coming into force of this Act on 1 March 1982 requires a registration of the marriage for every single marriage and if the marriage was and if the marriage made before the law coming into force as illustrated under section 33. Although section 33 provides for voluntary registration, under section 34, nothing in the Act shall be construed to render valid or invalid marriage, merely by reason of its having been or not having been registered. This has effect of validating all customary marriages that were not registered before 1 March 1982, as long as the act of marriage is valid. In Leong Wee Shing v Chai Siew Yin [2000], where the issue was whether the Plaintiff ‟s marriage was void for non-registration at the Registry of Marriages, it was held that section 34 of the Reform Act had been satisfied. There was a proper tea ceremony, there was an act of marriage, it had been properly solemnized and the non-registration did not by itself invalidate the marriage.

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Define ratio decidendi and illustrate ratio decidenci with reference to one decided case. (LAW 431-Sec A/Q2/Apr2008 – 6 marks) Ratio decidenci is the legal principle or principles underlying the decision. It is a source of law that binds future courts in other cases with similar facts. The ratio may or may not be explicitly stated by the court; more usually, it has to be extracted from the obiter dictum, which translates as remark in passing. For instance, the qualification to apply the English law is illustrated in Attorney General, Malaysia v Manjeet Singh Dhillon [1991]. The court held that in the absence of any specific local legislation concerning contempt of court, the common law of contempt as stated in R v Gray [1900] should be applied under section 3 CLA 1956. That decision was later followed by the Court of Appeal in Murray Hiebert v Chandra Sri Ram [1999]. Hence, it can be said the ratio decidenci of the earlier cases will be followed by the later cases with similar facts in the future.

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Explain “legislative control‟ as one of the main controls of subsidiary legislation. (LAW431-Apr2010/SecA/Q4-6 marks) Legislative control is one of the main controls over subsidiary legislation. The legislature exercises control over subsidiary legislation through the laying procedure. An enabling statute may require legislation made under it to be laid before the legislature, either for the legislature ‟s information or confirmation. Example of a simple laying formula are to be found in section 83(3) of the Trade Marks Act 1976 (Act 175), which requires subsidiary legislation made thereunder to be laid before both Dewan. Besides that, section 58(4) of the Trade Unions Act 1959) (Act 262) (Revised 1981), which requires the subsidiary legislation to be laid before the Dewan Rakyat only. Further elaborated, the laying procedure for confirmation by the legislature may be by way of 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 section 19(3) of the Control of Imported Publication Act 1958. The alternative, the affirmative resolution procedure, is more effective method of control because the subsidiary legislation ceases to have effect until, within the prescribed period, the legislature passes a resolution affirming it. Section 15(1) of the Sales Tax Act 1972 bears an example. The legislature which grants the delegated powers by an enabling statute may repeal the statute or revoke or vary the delegated powers.

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State and explain THREE (3) advantages and disadvantages of the doctrine of judicial precedent. (LAW 431- Sec A/Q3/Apr 2009 – 6 marks) The doctrine of judicial precedent has its own advantages and disadvantages. First, the doctrine provides certainty in law. The doctrine of precedent therefore helps with the questions of predictability as judicial precedent is rigidly followed. This certainty leads to consistency and fairness in that like cases are dealt with in a similar way. This means the legal profession can give more helpful advice regarding the law to their clients including the outcome, cost and chances of success. Next, the doctrine is able to avoid arbitrariness. By applying the precedent of earlier decisions, the court may determine the outcome of the case. This practice can avoid waste of judicial effort and time rethinking solutions to similar problems previously settled. Besides that, this doctrine also has the disadvantages. By applying the doctrine, the law becomes rigid. The judge is bound to follow the precedent of earlier decisions. The law becomes fixed and rigid unless the decision was overruled by recent case with similar fact. This is however hard to overcome because the development of law is slow and irregular. Sometimes the judges are reluctant to change the law.

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Identify the types of Act and the legislation currently in force in Malaysia. (LAW434 – NOV2012/Sec A/Q3 – 6 marks) Laws enacted by Parliament are called Act. There are four types of Acts. The first type of Act, which is the most common Act is the Principal Act. One example of the Principal Act is the Contract Act. The second type of Act is the Amendment Act, which makes changes to a Principal Act. When a principal Act is heavily amended over the years, the Percetakan Nasional, formerly called the Government Printer may print new copies or reprints of the Act. The third typ...