I am a true procrastinator, getting better by day, though, I will be updating on notes soon, hopefully, since finals is near.
Areas of interest this time round would be :
a) Criminal Law
b) Administration of Trusts (AoT)
c) Land Law (Malaysian Land law, based on the Australian Torrens System)
d) Specific Contracts : Law of Agency and whatnots
Thursday, May 30, 2013
Tuesday, March 12, 2013
Legal Research and Methodology : Part 1
Heyya!
I was made to understand that Legal Research and Methodology (LRM) is a compulsory paper for all law undergraduates, whatever law school you're from. Anyways, I'm taking it up this semester and I am lucky enough to get the best and also my favourite lecturer to teach this paper. It appears to be a bit dry (I'm being nice, it's a lot dry) but it really depends on what area of law you're researching on, and definitely your area of interest. As for me, I'm the crazy nut who fancies Contract. Don't judge. Haha.
Now, let's get on to it. So, What is Legal Research?
Legal Research arises when a researcher is confronted with an area in law that has a lacuna, an area of social science or human interest that needs to be regulated, or regulations that needs to be reviewed because of its unsuitability or incomprehensiveness to the progression that has taken place.
In short, when :
1) There is a lacuna/lacunae in the law
2) The law is obsolete and needs to be reviewed.
Significance of a research
A research provides an important way to obtain accurate and reliable information.
Types of research
There are two types of research, namely Qualitative Research and Quantitative Research.
Qualitative Research : Data collected as words and/or images are not numerically coded for analysis.
Quantitative Research : Numerical data only.
A legal research is a qualitative research as it is based on reasons and opinions even.
There are two sources to a Qualitative Research i.e :
i) Primary Source ---> Statutes
ii) Secondary Source ---> Articles and journals
Before one embarks on a legal research, they have to submit a proposal beforehand, called a.... research proposal (duhhh). So, what is the significance of a research proposal?
Significance of a Research Proposal
1) The proposal lays forth the research problem, literature review and the research methodology.
2) The proposal expounds on the research process.
3) It functions as a blueprint for the researcher.
This was what I gathered from my first lecture last week. Will update soon.
xx
Saturday, March 9, 2013
Final Leg of Year 2 :D
I'm in my fourth semester already! Quite excited, yes, especially because I'll have mooting classes this semester, and god, I enjoy moots so (if not too) much! Anyways, these are the subjects that I'll have to scramble through to get past the final leg of my second year in law school :)
1) Administration of Trusts
2) Criminal Law II
3) Land Law II
4) Law Research and Methodology
5) Mooting
6) Specific Contracts : Sales, Credit and Agency
Hopefully I'll not be a champion lazy ass and actually write/type out notes. Hopefully.
On another note, happy-not-so-happy studying!
1) Administration of Trusts
2) Criminal Law II
3) Land Law II
4) Law Research and Methodology
5) Mooting
6) Specific Contracts : Sales, Credit and Agency
Hopefully I'll not be a champion lazy ass and actually write/type out notes. Hopefully.
On another note, happy-not-so-happy studying!
Sunday, January 13, 2013
Procrastination in motion
Since finals is almost over, so will this blog, till the need arises. Till then, hope this thingy helped you guys out even the tiniest bit.
x
x
Saturday, January 12, 2013
Control over Subsidiary Legislation : Judiciary (Substantive Ultra Vires)
Time is running short so I'll be making just a brief summary of this sub topic aite :D
Substantive Ultra Vires
Definition
S UV refers to the scope, extent and range of power conferred by the statute to make SL. It is based on the principle that legislative power belongs to the Parliament and that any other subordinate agency has no power to legislate except to the extent allowed by the Parent Act. In simpler words, it could not exceed the scope of power as provided in the Parent Act.
McEldowney v Forde
The judge in this case suggests the threefold test in order to ascertain the validity of a SL. The test is :
1) Court will determine the words used in the Parent Act that describes the subordinate legislation which the delegate is allowed to make
2) Then the Court will determine the meaning of the SL
3) Finally the Court will decide whether the SL complies with the description in the Parent Act.
The Malaysian Courts too have been firm in applying this doctrine, from the case of Wong Pot Heng v Gov. of Malaysia, the Court held that they have the jurisdiction to declare any SL that ultra vires the Parent Act as invalid.
Provisions
1) S. 23(1) Interpretation Act : Any SL inconsistent with Parent Act shall be void to the extent of inconsistency.
2) S. 87(d) Interpretation Act : No SL shall be inconsistent with Parent Act.
The types of Substantive Ultra Vires
I made an acronym for this, so that it's easier to remember, for me at least. It is :
F U R U E, and it stands for..
F : Financial levy
U : Unreasonableness
R : Retrospective
U : Ultra vires
E : Exclusion of Court
Financial Levy
A financial levy may not be imposed in a SL unless such power is expressly allowed in the Parent Act. S.44 of the Interpretation Act further states that in order for a SL to impose financial levy, the Parent Act has to allow such levying of fees and charging to be done.
Attorney-General v Wilts United Dairies
In this case the Parent Act does not state anything to allow the SL to impose financial levies. However so, when the Respondent wants to make a licence to sell milk the Controller (Subsidiary Legislator) made a rule that the Respondent has to pay levy for every gallon of milk sold in order for him to get the licence.
Decision : Court held the Collector's action is invalid as no express provision in Parent Act to allow SL to impose financial levy.
Unreasonableness
It is implied in every SL that the SL shall not be unreasonable. Unreasonable was defined in the case of Kruse v Johnson as anything in the SL that is impartial, unequal, manifestly unjust, disclosed bad faith, and oppressive so as to find no justification in the minds of reasonable men. It was said that Parliament could never have intended to give authority to make such rules, they are unreasonable and ultra vires
McEldowney v Forde
In this case, there was a provision in the bye-law stating that anyone who is a member of any unlawful association shall be found guilty of an offence. Unlawful association refers to any Republican Club or 'any like organisation'. A person who was a member of a Republican Club which was innocent of any unlawful activity was prosecuted.
Decision : Court held that the SL was too vague and so arbitrary as to be unreasonable.
Retrospectivity
It is an implied restriction in SL that it shall not have retrospective effect unless expressly provided in the Parent Act. Section 20 of the Interpretation Act provides that SL may be made to operate retrospectively to any date not earlier than the coming of the Parent Act.
Attorney-General v Cold Storage
In this case the Parent Act was enacted in 1964 and the bye-law was made in 1976. The bye-law was to have a retrospective effect to the date of the coming of the Parent Act. The respondent argued that by doing that the claimant had acted above their powers.
Decision : Since the Parent Act allows bye-laws made to have retrospective effect, the bye-law was valid.
Ultra vires (Subsidiary Legislation ultra vires the Parent Act)
This is when the SL makes bye-laws which exceeds the extent allowed by the Parent Act.
Re Lee Kian Soo, An Architect
In this case, the Parent Act empowered the Boards of Architect to strike an architect's name of the list of they were found 'guilty of any act or conduct' which in the Board's opinion is infamous any professional conduct. However so, the bye-law made pursuant to this Act, specifically in Section 13 of the Architect Bye-Law defined what was misconduct on the part of an architect. The aggrieved party claims that the SL ultra vires the Parent Act on the ground that it has removed the Board of Enquiry's opinion in deciding what was an infamous conduct by limiting it to whatever is provided in Section 13 of the bye-law.
Decision : Court held that the bye-law was invalid as it exceed the scope of power allowed by the Parent Act.
Exclusion of Courts
Any SL which excludes the Court in reviewing the decision made via SL is invalid unless the Parent Act allows for such exclusion.
Commissioners of Custom & Excise v Cure & Deeley
In this case the SL had exclude the power ofteh court to revise the decision made by the Commissioner.
Decision : Court held that the SL is void because it violates the right of an individual to make an appeal to the court of law and it contradicts the Parent Act.
So.. F U RU E FTW! :D
Substantive Ultra Vires
Definition
S UV refers to the scope, extent and range of power conferred by the statute to make SL. It is based on the principle that legislative power belongs to the Parliament and that any other subordinate agency has no power to legislate except to the extent allowed by the Parent Act. In simpler words, it could not exceed the scope of power as provided in the Parent Act.
McEldowney v Forde
The judge in this case suggests the threefold test in order to ascertain the validity of a SL. The test is :
1) Court will determine the words used in the Parent Act that describes the subordinate legislation which the delegate is allowed to make
2) Then the Court will determine the meaning of the SL
3) Finally the Court will decide whether the SL complies with the description in the Parent Act.
The Malaysian Courts too have been firm in applying this doctrine, from the case of Wong Pot Heng v Gov. of Malaysia, the Court held that they have the jurisdiction to declare any SL that ultra vires the Parent Act as invalid.
Provisions
1) S. 23(1) Interpretation Act : Any SL inconsistent with Parent Act shall be void to the extent of inconsistency.
2) S. 87(d) Interpretation Act : No SL shall be inconsistent with Parent Act.
The types of Substantive Ultra Vires
I made an acronym for this, so that it's easier to remember, for me at least. It is :
F U R U E, and it stands for..
F : Financial levy
U : Unreasonableness
R : Retrospective
U : Ultra vires
E : Exclusion of Court
Financial Levy
A financial levy may not be imposed in a SL unless such power is expressly allowed in the Parent Act. S.44 of the Interpretation Act further states that in order for a SL to impose financial levy, the Parent Act has to allow such levying of fees and charging to be done.
Attorney-General v Wilts United Dairies
In this case the Parent Act does not state anything to allow the SL to impose financial levies. However so, when the Respondent wants to make a licence to sell milk the Controller (Subsidiary Legislator) made a rule that the Respondent has to pay levy for every gallon of milk sold in order for him to get the licence.
Decision : Court held the Collector's action is invalid as no express provision in Parent Act to allow SL to impose financial levy.
Unreasonableness
It is implied in every SL that the SL shall not be unreasonable. Unreasonable was defined in the case of Kruse v Johnson as anything in the SL that is impartial, unequal, manifestly unjust, disclosed bad faith, and oppressive so as to find no justification in the minds of reasonable men. It was said that Parliament could never have intended to give authority to make such rules, they are unreasonable and ultra vires
McEldowney v Forde
In this case, there was a provision in the bye-law stating that anyone who is a member of any unlawful association shall be found guilty of an offence. Unlawful association refers to any Republican Club or 'any like organisation'. A person who was a member of a Republican Club which was innocent of any unlawful activity was prosecuted.
Decision : Court held that the SL was too vague and so arbitrary as to be unreasonable.
Retrospectivity
It is an implied restriction in SL that it shall not have retrospective effect unless expressly provided in the Parent Act. Section 20 of the Interpretation Act provides that SL may be made to operate retrospectively to any date not earlier than the coming of the Parent Act.
Attorney-General v Cold Storage
In this case the Parent Act was enacted in 1964 and the bye-law was made in 1976. The bye-law was to have a retrospective effect to the date of the coming of the Parent Act. The respondent argued that by doing that the claimant had acted above their powers.
Decision : Since the Parent Act allows bye-laws made to have retrospective effect, the bye-law was valid.
Ultra vires (Subsidiary Legislation ultra vires the Parent Act)
This is when the SL makes bye-laws which exceeds the extent allowed by the Parent Act.
Re Lee Kian Soo, An Architect
In this case, the Parent Act empowered the Boards of Architect to strike an architect's name of the list of they were found 'guilty of any act or conduct' which in the Board's opinion is infamous any professional conduct. However so, the bye-law made pursuant to this Act, specifically in Section 13 of the Architect Bye-Law defined what was misconduct on the part of an architect. The aggrieved party claims that the SL ultra vires the Parent Act on the ground that it has removed the Board of Enquiry's opinion in deciding what was an infamous conduct by limiting it to whatever is provided in Section 13 of the bye-law.
Decision : Court held that the bye-law was invalid as it exceed the scope of power allowed by the Parent Act.
Exclusion of Courts
Any SL which excludes the Court in reviewing the decision made via SL is invalid unless the Parent Act allows for such exclusion.
Commissioners of Custom & Excise v Cure & Deeley
In this case the SL had exclude the power ofteh court to revise the decision made by the Commissioner.
Decision : Court held that the SL is void because it violates the right of an individual to make an appeal to the court of law and it contradicts the Parent Act.
So.. F U RU E FTW! :D
Control over Subsidiary Legislation : Judiciary
Some form of control is needed over subsidiary legislators an persons authorised to enact law as a safeguard. This is to minimise the disadvantage of the system and to maximise it's benefits.
Therefore, several forms of control have been formulated and they are :
1) Parent Act Ultra Vires FC : PA UV FC
2) Subsidiary L Ultra Vires FC : SL UV FC
3) Substantive Ultra Vires : S UV (will be discussed in a separate post)
4) Procedural Ultra Vires : P UV
Parent Act Ultra Vires FC
Article 4 FC provides that the FC is the Supreme Law of the Land and every law inconsistent with it shall be void to the extent of it's inconsistency. Therefore, should a Parent Act be found to be inconsistent with the FC, and thus vois, so shall any subsidiary legislation made pursuant to the Parent Act
Johnson Tan Heng Seng v Public Prosecutor
In this case, the validity of the ESCAR was challenged (the ESCAR is a SL made pursuant to it's Parent Act, the Emergency Ordinance 1959). The claimant said that since the situation have now changed (not an emergency situation any more) therefore the Emergency Ordinance is invalid and consequently the ESCAR too.
Decision : The Court held that it was up to the Executive and not for the Courts to decide whether a proclamation of emergency under Article 150(1) should or should not be terminated. Therefore, in this case, the Emergency Ordinance 1959 was deemed to be valid and so does the ESCAR.
Subsidiary Legislation Ultra Vires
If the Parent Act does not contradict the FC but the SL contradicts the FC, only the latter will be invalid.
The Parent Act will remain valid.
Teh Cheng Poh v Public Prosecutor
In this case, again the validity of ESCAR was challenged. It was argued that the ESCAR was made 4 years after Parliament had sat. Article 150(2) FC states that the YDPA may not make regulations having the force of law after Parliament sat. Therefore, the SL ultra vires the FC.
Decision : The Privy Council overturned the FC's decision. They held that the power of the YDPA to promulgate regulations having the force of law lapsed as soon as Parliament sat and this power would not revive even during periods when Parliament was not sitting.
Procedural Ultra Vires
SL may be held invalid on the ground of procedural ultra vires. A Parent Act may stipulate procedures that the subsidiary legislators have to follow in making a regulation. Non-compliance with the procedure may result in the SL deemed invalid, depending if the procedure is directory or mandatory. With regards to that, it is the Court that will decide whether a procedure is directory or mandatory.
Wong Keng Sam v Pritam Singh Bar
Court held in this case that a person may not seek for redress in a court for any breach or non-compliance with a rule which not mandatory and only directory.
So this is about it for Judiciary Control, as for Substantive Ultra Vires, it'll be in a separate post. Probably :-\
Friday, January 11, 2013
Subsidiary Legislation : Definition and Reason for growth
Definition
Section 3 of the Interpretation Act defines Subsidiary Legislation (SL) as "Any proclamation, rule, regulation, order, notification, bye-law or other instrument made under any Act, Enactment or other lawful authority.
In simpler words it means law made by bodies or persons pursuant to a power delegated by the legislature to them having the force of law. This type of law has the same effect as if they were passed in Pt or State Legislature itself.
Reason for the growth of Subsidiary Legislation
A number of factors have contributed to the growth of SL :
1) T : The Time Factor
Parliament does not have enough time to legislate all the laws in the land. The Public requires a vast quantity and type of law, which the Parliament, on it's own is unable to make and meet. Thus, to resolve this issue, Parliament would enact the broad principles of law in the 'Parent Act' and allow the bodies or persons authorized in the Act to deal with the details.
2) D : Details and Technicalities of the Law
Members of Parliament enacts the law, indeed, however so, they may not be an expert in the area of law they are legislating. For instance, MPs generally may not be able to enact an Act which deals with all the complexity and technicalities of Marine Law, often only experts specialised in the subject-matter can work them out. Therefore, to overcome this, again the Parliament enacts only the 'Parent Act' and leave the details to such experts.
3) F : Flexibility of Subsidiary Legislation
A SL is very flexible as compared to an Act of Parliament (AoP). For instance, if something needs to be changed in an Act of Parliament, it would have to pass an amending legislation. This is not the case for SLs as it is possible to rapidly change details of the SL from time to time so as to adapt to formerly unforeseen and unknown future problems.
4) E : Emergency Situations
Should there be a time when the country is under emergency and there is a need for a legislation immediately to handle the situation, Parliament can't be convened nor can they enact laws immediately. They have mandatory procedures that they have to adhere to. This is when SL comes in handy as it allows for the administration to promulgate the necessary rules and regulations according to the needs of the emergency situations.
Reference : M.P Jain, 4th Edition, Page 45-47.
Section 3 of the Interpretation Act defines Subsidiary Legislation (SL) as "Any proclamation, rule, regulation, order, notification, bye-law or other instrument made under any Act, Enactment or other lawful authority.
In simpler words it means law made by bodies or persons pursuant to a power delegated by the legislature to them having the force of law. This type of law has the same effect as if they were passed in Pt or State Legislature itself.
Reason for the growth of Subsidiary Legislation
A number of factors have contributed to the growth of SL :
1) T : The Time Factor
Parliament does not have enough time to legislate all the laws in the land. The Public requires a vast quantity and type of law, which the Parliament, on it's own is unable to make and meet. Thus, to resolve this issue, Parliament would enact the broad principles of law in the 'Parent Act' and allow the bodies or persons authorized in the Act to deal with the details.
2) D : Details and Technicalities of the Law
Members of Parliament enacts the law, indeed, however so, they may not be an expert in the area of law they are legislating. For instance, MPs generally may not be able to enact an Act which deals with all the complexity and technicalities of Marine Law, often only experts specialised in the subject-matter can work them out. Therefore, to overcome this, again the Parliament enacts only the 'Parent Act' and leave the details to such experts.
3) F : Flexibility of Subsidiary Legislation
A SL is very flexible as compared to an Act of Parliament (AoP). For instance, if something needs to be changed in an Act of Parliament, it would have to pass an amending legislation. This is not the case for SLs as it is possible to rapidly change details of the SL from time to time so as to adapt to formerly unforeseen and unknown future problems.
4) E : Emergency Situations
Should there be a time when the country is under emergency and there is a need for a legislation immediately to handle the situation, Parliament can't be convened nor can they enact laws immediately. They have mandatory procedures that they have to adhere to. This is when SL comes in handy as it allows for the administration to promulgate the necessary rules and regulations according to the needs of the emergency situations.
Reference : M.P Jain, 4th Edition, Page 45-47.
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