Legal Research

Skill Workshop
Renaissance, Kuala Lumpur
28 March 2013
Presented by
Shaikh Mohamed Noordin

Organized by BizNet-Global
 Who am I?

Law Librarian for almost 18 years

Part of the helping professions
Librarian at MISC for 10 years
Librarian at Raja, Darryl & Loh Advocates and
Solicitors for 5 years
Librarian at Tay & Partners Advocates and
Solicitors for 9 years
Library Consultant at Belden Advocates and
Solicitors since 2011
Why this workshop important?

Gives you an idea of what are the essential information you

need to know before you do legal research

Gives you an idea of what sources of law you need to

consult in order to find the most reliable legal authority.

You will learn the purpose and usage of primary and

secondary sources of law and how to use them effectively.

You will learn to identify which legal authority that gives you
binding and persuasive effect on your legal solution.
 Part 1
The Important of Legal Research
28th March 2013 09.15AM
Legal research is an essential
lawyering skill
1. Client
intervie
w&
Investig
ation

6.
LEGAL 2.
RESERA writing
CH
The
Lega
l
Skill
s
5.
3.
Advocac
Drafting
y

4.
Negotiati
on
 Importance of legal research

Legal Profession (Practice and Etiquette) Rules

[P.U. (A) 369/78]

Rule 21: Improper to Misquote

It is improper for an Advocate and Solicitor -

(b) with knowledge of its invalidity, to cite as

authority a decision that has been overruled or a
statute that has been repealed: or
Correct Issue Identification
(Using the TARP Method)

THING or subject matter, place, or

T property (e.g., divorce, contested will,
dog bite)
A Cause of ACTION or ground for defense
(e.g., breach of contract, mistaken identity)

R RELIEF sought or type of lawsuit (e.g.,

monetary damages, injunction)

PARTIES involved & their relationship to

P each other (e.g., husband-wife, employer-
employee, landlord-tenant)
 Keeping up with the
constant changing law &
amendments
Who make & change the Law?

The Law generated by the three branches

of government
Judiciary Case law
Legislature - Legislation
Executive Subsidiary legislation
Accessing primary authorities (legislation &
case law) is the ultimate goal of nearly all
legal research
 Who make & change the Law?

Legislature Executive Judiciary

(Parliament) (Cabinet) (Courts)

Types of law Statutory Law / Administrative Law / Case Law / Judgments

Primary Legislation Subsidiary Legislation
Official Publications Warta Kerajaan - Warta Kerajaan - MLJ (semi-official
[Pemberitahuan reports)
Undang-Undang (A)
and (B)]
Private Publications ILBS and etc. ILBS and etc. CLJ and AMR

Online Publications LawNet and CLJ Ministries and Courts websites

Online statutory bodies
Federal Government websites
Gazette (e-gazette)
 Why do law change?

We make new laws e.g. new Personal Data Protection Act 2010,
which weren't previously needed.
We amend legislation to keep it up to date and in response to
changing of needs and times.
We repeal old laws that are completely out of date.
Legislation is interpreted by the judges who have to translate that
legislation into something practical and workable through their
decisions.
Laws can be challenged in court and may, as a result need to be
amended.
Some national laws are altered or superseded by new and changing
international or regional treaties.
 Changes in Legislation

Reprinted Acts
Revision Acts
Revising of Act Extension / Modification Act

Codification Act
Restructuring Consolidation Act
Validation Act
of Act
Amendment Act
Amending of Finance Act
Order P.U. (A)
Act

Abolishing of Repealed Act

Acts Dissolution Act
 Revising of Acts
(Akta-Akta Penyemakan)

Acts are revised by the Law Revision Commission under the

Revision of Laws Act 1968 (Act 1).
Reprinted Act (Akta Cetak Semula) is an edited version of Principal Acts after
incorporating all the previous amendments up until the date of the reprint e.g.
Pawnbrokers Act 1972 (Act 81) Reprint 1999.

Revision Act (Akta Semakan) is the Act which results from changes restricted
to technical, grammatical and typographical changes without changes of
substance e.g. Petroleum (Income Tax) Act 1967 (Act 543) (Revised 1995).

Extension / Modification Act (Akta Peluasan) is an Act that extended its

jurisdictions to other states i.e. from Peninsular to Sabah and Sarawak or vice
versa e.g. Specific (Malay States) (Amendment and Extension) Act 1974
(A238), Arbitration Ordinance of Sarawak (Cap. 45), Partnership Ordinance
1961 of Sabah (No. 1 of 1961).
 Restructuring of Acts
(Akta-Akta Penstrukturan Semula)

Acts can be alerted by Codification, Consolidation and

Validation of the Acts
Codification Act (Akta Pengkanunan) An Act that combining several
provisions from several Acts and/or from certain case law on the
relevant subject matters into a new Act e.g. the Child Act 2001 (Act
611) is a combination of the Child Protection Act 1991 (Act 468), the
Juvenile Courts Act (Revised 1972) (Reprint 1981) Act 90 and the
Women and Girls Protection Act 1973 (Act 106).

Consolidation Act (Akta Penyatuaan) An Act brings together in one

simple Act, two or more Acts on relevant subject matters passed over a
period of time without changes e.g. Interpretation Act 1948 and 1967,
Act 388 (Consolidated and Revised) 1989.

Validation Act (Akta Pengesahan) - An Act to give legal force (to

legalize) normally on alteration of fees- Fees (National Planetarium)
(Validation) Act 1998, Act 583
 Amending of Acts
(Pemindaan Akta-Akta)

Acts can be amended by

Amendment Acts (Pemindaan Akta) An Act can only be amended by the
amending Act through legislative process. Amendment Acts are published
in a separate series in the Government Gazette with the prefix A before
the serial numbers.

Finance Act (Akta Kewangan) This an omnibus Act which carry minor
amendments and technical improvements for several Acts which normally
related to finance and may be in force in various commencement dates e.g.
Finance Act 2000 (Act 600).

Order - P.U. (A) (Arahan) - If it is only a minor change of one Act, it can
also be amended through a subsidiary legislation by using Order
instruments. See Section 91 of Interpretation Acts 1948 and 1967 (Act
388).
 Abolishing of Acts
(Pemansuhan Akta-Akta)

Acts can be abolished by

Repealed Act (Akta Pemansuhan) - The Act can be repealed

with another Act. The term repeal uses for primary legislation
e.g. Acts, enactments and ordinances. The term revoke use
for subsidiary legislation e.g. Regulations, Rules, Orders and
By-laws.

Dissolution Act (Akta Pembubaran) The Acts can totally be

abolished by the Dissolution Acts. e.g. Port Workers
(Regulation of Employment) (Dissolution) Act 2000 (Act 607).
How Acts of Parliament are
made or amended?
1. Input from the
public

8. Published as an 2. Proposed by the

Act of Parliament Ministries to AG
for drafting

7. Sent for Royal 3. Tabled to Cabinet

Assent for approval

6. Third Reading 4. First Reading

Voted for the Bill by (Bill can be initiated
DR & DN by DR or DN)
5.Second Reading
Debated on the
Bill by both DR &
DN
Tracing date come into force of
Acts of Parliament

On the date of Royal assent

On another date as specified in Act
No date specified, see Interpretation Act. In
force a day after publication date of the Act
To be proclaimed, will be gazetted under
PU(B)

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What is saving and transitional
provisions?
Some new Acts have saving and transitional provisions which its
application need to be observed. Section 33 of Interpretation Acts 1948
and 1967, Act 388 explains further on this.
What is a savings provision?
A savings provision saves something that, if it were not saved, would be
altered or abrogated by an Act. Things that might need saving include an
existing law or a status provided by an Act.

What is a transitional provision?

A transitional provision explains how an Act applies to circumstances that,
having arisen in the past, will be affected by the Acts coming into force.
Circumstances for which transitional provisions might be needed include
the existence, when the Act comes into force, of persons holding office or
proceedings before a court.
 When are savings and
transitional provisions; needed?

Savings or transitional provisions may be needed in

Acts that change the law. An Act may change the law
by -

amending another Act

repealing another Act
repealing another Act and replacing it
being itself a new Act.
 Why law must be published
No Law shall come into force until it is published
Federal Constitution Article 66(5)

As a common law country, our legal system is based

on precedent (following stare decisis doctrine)
Precedent teaches us to look backward, not forward
Rulings made in the past govern the future
The existence and authority of these rules are verified by
citing the official print
If it isnt print, it isnt proof
Therefore, legal authority MUST be gazetted and
reported as public documents for public reference
 Keeping up with the constant
changing law Primary Materials

Keeping up to date with primary materials.

Case law
CLJ Bulletins (alert service by CLJ)
AMR E-Alert (alert service by AMR)
Federal Court website - Alasan Penghakiman -
http://www.kehakiman.gov.my/
Legislation
News Flash (alert service by LawNet)
e-Federal Gazette -
http://www.federalgazette.agc.gov.my/index.php
 Keeping up with the constant
changing law Subject Alerts
Keeping up to date Subject alerts.
CLJ LabourLaw Bulletins
Malaysian Law Portal - http://malaysianlaw.my/
Banking & Finance
Corporate Law
Competition Law
Criminal Practice
Dispute Resolution
Employment Law
IP Law Malaysia
MLTIC - Malaysian Legal and Tax Information Centre
Keeping up with the constant
changing law Legal News

Keeping up to date with legal news and

development
MLTIC Malaysian Law Daily Legal Alert
Singapore Law Watch Singapore Daily Legal
News
 Failure to conduct
proper research can
lead to serious
consequences
Citing case was not yet in force Act
MENTAL HEALTH ACT 2001, ACT 615
Force from: 15 June 2010 [PU(B) 269/2010] - [2007] 1 LNS 191

Historical background to the present application

in enclosure 10
[1] This is a sequel to the first judgment which has since been
reported and it has been reported in the three popular local law
journals, namely:

(a) Tan Guek Tian & Anor v. Tan Kim Kiat [2007] 8 CLJ 215;

(b) Tan Guek Tian and Anor v. Tan Kim Kiat @ Chua Kim Kiat
[2007] 3 MLJ 521; and

(c) Tan Guek Tian (f) & Anor v. Tan Kim Kiat @ Chua Kim Kiat
[2007] 3 AMR 758.
Citing case was not yet in force Act
MENTAL HEALTH ACT 2001, ACT 615
Force from: 15 June 2010 [PU(B) 269/2010] - [2007] 1 LNS 191

Historical background to the present application

in enclosure 10
[2] In the first judgment, the Mental Health Act 2001 (Act 615)
(hereinafter referred to as "the said Act 615") plays a prominent role
in adjudicating enclosure one (1). It now transpires that the said Act
615 has not come into operation because the Minister charged with
the responsibility for health has not appoint by notification in the
gazette the date of the coming into operation of the said Act 615.
Section 1(2) of the said Act 615 sets out the commencement date
and checks with the government gazette revealed that no such
commencement date had been published.
Citing case was not yet in force Act
MENTAL HEALTH ACT 2001, ACT 615
Force from: 15 June 2010 [PU(B) 269/2010] - [2007] 1 LNS 191

Historical background to the present application

in enclosure 10
[Cont] Further checks with the CLJ online version of the said Act
615 revealed that it is not yet in force. There is a real risk that
other legal practitioners and litigants in Malaysia would rely on
the first judgment as reported in order to make similar
applications like enclosure one (1) pursuant to the said Act 615
bearing in mind that the said Act 615 is currently in circulation to
members of the public. The continued reliance on the said Act 615
on the assumption that it is in force would cause confusion and stifle
the modern development of the law relating to mental disorders.
 Cases where (lack of) legal
research discussed

1. Lougheed Enterprises Ltd. v. Armbruster

(1992), 63 B.C.L.R. (2nd) 316 (C.A.).
counsel has a duty to research all cases on
point
the duty to inform the court includes a duty to
refer the court to cases which may contradict
counsels argument, as well as those that may
be unreported
 Cases where (lack of) legal
research discussed

2. World Wide Treasure Adventures Inc. v.

Trivia Games Inc. (1987),
16 B.C.L.R. 135 (Sup.Ct.).
counsels failure to properly research and
understand the law may indicate negligence on
the part of the lawyer
here, this failure resulted in solicitor-client costs
being awarded against the lawyer
 Cases where (lack of) legal
research discussed

3. Gibb v. Jiwan, [1996] O.J. No. 1370 (S.C.J.

(Gen. Div.).
counsel has a duty to be competent and to
keep informed of developments in their area of
practice
counsel must adequately research and
understand the law prior to giving advice to a
client or prior to appearing in court
 Cases where (lack of) legal
research discussed

4. People v. Ledesma, [729 P.2d 839, 871 (Cal.

1987).
In which the court noted that an attorneys first
duty is to investigate the facts of clients case
and to research the applicable those facts. In
sum, the ethical duty to conduct adequate
research required of attorneys is shared by
paralegals as well.
 Part 2
Excelling in Legal Research
Techniques
28th March 2013 10.30AM
 Framing issues &
identifying keywords
Searching Using Keywords & Boolean Logic
Keywords: Defining Legal Concepts

Keywords are the search terms used

to locate legal materials!
A keyword search will retrieve documents and cases containing those
words or phrases.
They are used when conducting in both online and paper sources.
Think of keywords as terms used to define legal issues and concepts.
Choose your keywords carefully so that they are neither excessively
broad nor overly specific. (Imagine that you are casting a "net" to catch
relevant legal materials. If your net is not big enough, you will miss
important information. But if it's too large, there will be too much to sort
through!)
 How to identify keywords
to begin your research

1. The TAPP rule (suggested by Lawyers Co-op Publishing):

T Thing or object
A Action or Activity that has created the problem
P Persons involved (type or class of persons)
P Place where occurred

2. List Words Describing (suggested by West Publishing):

The Parties Involved
The Places where the facts arose and the objects and things
involved
The Acts or omissions that gave rise to the legal action or issue
The Defense to the action or issue
The Relief sought
 5 Ws and 1 H questions

Who did it and to whom?

What has it done?
When was it done?
Where was it done?
How was it done?
 Use Alternate Terms

Closely related Blind, as well as visually impaired or

words disabled

Broader Instead of car or station wagon, use

categories automobile, Vehicle or motor vehicle

Narrower Instead of accidents, try hit and run or

categories slip and fall

Synonyms Child, as well as minor, infant, juvenile

or delinquent

Antonyms Marriage and nuptial vs. divorce,

dissolution, annulment
or separation
Initial Research
Legal research process
 Legal research process

Basic steps:
Identify the legal issue(s)
Work with specialized legal
and non-legal research
tools and sources
Apply the law you find to
solve legal problem
 Step One: WHEN FRAMING
YOUR QUESTION

Remember FIRAC stands for:

FACTS what are the facts?
ISSUES what legal questions are involved?
RULES what law (s) applies?
ANALYSIS apply the law (s) to answer the
issue (s).
CONCLUSION a short summary defining your
position
Step Two: FACTUAL ANALYSIS

Know your FACTS:

Factual elements:
1. What is the THING or ACT
2. Who are the PERSONS involved?
3. What is the PLACE involved?
4. Where did the act or action take place?
5. When did the action take place?
6. How did the events/actions take place?
7. Why did this happen?
Step Three: INDENTIFY LEGAL
ISSUES

Know your ISSUES:

Legal elements:
1. What is the RELIEF being sought?
2. What is the PROCEDURE required?
3. What are the LEGAL THEORIES?
4. Who has the BURDEN OF PROOF?
5. What are the DEFENCES?
6. What are the CAUSES OF ACTION?
Step Four: CLASSIFY THE LAW

Know the RULES:

Laws involved:
1. CONSTITUTIONAL?
2. FEDERAL (Acts) or STATE (Enactments)?
3. PRIMARY or SUBSIDIARY legislation?
4. STATUTE or CASE LAW?
5. POLICY or RULES?
6. Is there any GUIDELINES or PRACTICE
NOTES?
 Step Five: DEVELOPING A
RESEARCH VOCABULARY

Think of terms and phrases that might be

applied to your facts and issues. Be sure to
come up with as many synonyms, antonyms,
broader, narrower and related terms as
possible.

SOURCE: Law Dictionaries, Legal Thesauri,

Words and Phrases.
 Step Six: COLLECT
BACKGROUND INFORMATION

Learn the types of authority involved, i.e. Whether the issues are
governed by case law, statutory law, administrative law or a
combination. Secondary sources can be useful for this purpose.

SOURCES:
1. Legal Encyclopedias - Halsburys Laws of Malaysia.

2. Law Review articles - CLJ Online Articles, MLJ articles on CD

ROM.

3. Textbooks - Online Catalogue, Common law library

series, MLJ Handbook series, etc.

4. Loose-leaf Services - MLJ Civil Procedures, CCH tax guides,

employment guides. etc.

5. Practice Materials - MLJ Court Practices (Red book),

Malaysian Court Forms, etc.
 Step Seven: SEARCH FOR
AUTHORITY
Look for authoritative authority first. If no luck, try and
find persuasive authority.

1. Use primary sources: Is there a STATUTE on point?

SOURCE: Government gazette, Annotated Statutes of Malaysia, Acts in
individual booklets (ILBS, MDC, MLJ), etc.

2. If so, is there also SUBSIDIARY LEGISLATION?

SOURCE: Rules, Regulations, Orders and by-laws in government gazette,
Acts available in individual booklets.

3. If there are no annotations to statutes on point, try a Legislative History.

SOURCE: Bills, CLJ Online - Explanatory Statements by Acts.

4. Ask: Are there CASES on points?

SOURCE: Mallals Digest, InfoAlert, MLJ, CLJ AMR Subject indexes.
Step Eight: RE-EVALUATE AND
RE-ANALYZE THE ISSUES

In the course of your research you may have

come across a new issue. Go back and
see if you missed anything after becoming
familiar with the area of law.
Evaluate research:
What issues have already been answered?
What issues need to be addressed?
Have any new legal theories been
identified?
Step Nine: UPDATE AND VERIFY
AUTHORITY

Check for judicial consideration of cases to see if a case has

been reversed or affirmed on appeal or applied,
considered or overruled by another court in a later case.
For legislation, check the latest reprint of the Act or
Annotated Statues of Malaysia if the Act is included in
the list for latest annotations. Always check for the most
current information:

New edition books

Most recent supplements
Most recent updates

SOURCES: Use InfoAlert, CLJ Online, LawNet and MLJ on CD ROM

to update book research and citator services.
Step Ten: KNOW WHEN TO STOP
YOUR RESEARCH

When you have completed the steps in the

model;
When you have used a variety of appropriate
sources;
When you are finding the same authorities over
and over again;
When cost exceeds benefit, i.e. you run out of
time.
Hints that might help include -

Set parameters - does your topic deal with one

jurisdiction or is it international in scope?
List the facts, then identify the issues
Take notes
Proceed from the general to the specific; the
secondary to the primary source.
Identify keywords
Be innovative - never underestimate the value of
networking - ask someone!
Consulting Secondary
Sources
What are Secondary Sources

NOT the law

Provides citations to primary authority
Provides background information that can aid in
understanding primary authority (the law)
May present novel theories that later find their
way into primary authority
Often provides the best starting point for
research, especially when legal issues are
unclear
 Secondary Sources give you an
OVERVIEW

Assist you in understanding the law (case

law and statutory law)

Alert you to identify significant facts on the

law

Alert you on relevant legal topics that

must be checked

Provide analysis, critique and projections

of legal trends
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Question to ask when finding
secondary sources of law

Where do I start if I dont know anything about a

particular subject or issue?
Has this word or phrase been legally defined (in case
law or in legislation)
Has there been any official Government or
Parliamentary announcement on this matter?
Has there been any important commentary on this issue
by the legal profession, law reform or lobby group or
academics?
 What is legal textbook

Comprehensive legal commentaries

written by legal professionals, i.e.,
law professors, judges and practicing
lawyers

Either a single (handbook) or multi-

volumes publications

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 When you use a textbook

When you begin your research with little knowledge or

unfamiliar of the subject, or

When you have done so much of research but still

confused how to connect your finding of primary
authorities all together.

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 Legal encyclopedia

Comprehensive set of explanations on selected legal

topics as arranged in alphabetical order
Narrow down from general to specialised topics/subjects
Attempt to focus more on various topics/subjects
Include extensive legal footnotes such as case and
legislative citations

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 Why should you use a legal
encyclopedia

Excellent source for a quick

explanation on various of law topics in
series of volumes

A quick way to find citations that could

lead to on-point cases and legislative
authorities on a particular issue
(through the footnotes)

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 Legal Dictionaries

Provide definitions of words in their

legal sense or use. Some may
include citation of authorities

Include tables defining legal

abbreviations and acronyms

Single or multi-volume titles

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 Loose leaf services

An integrated compilation of primary and secondary materials and

research aids

An excellent source for locating all relevant legal materials on a

specific subject

Generally include regulation intensive subjects such as construction

law, employment law or land law

Organized differently, according to subject matter and publisher

often have a how to use section

Updated regularly and quickly rapidly changing laws

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 Confirming that your
authority is still good law
How to check your authority is
still good law?

All legal authorities can be identified by Legal citator. Legal citator is a

standard language (code) used to find legal authorities. Legal citation
is more commonly used for cases and statute, although article and
book citation are relevant as well.

Follow these steps to update:

1. Know the citation to the authority you want to update.
2. Use noter-up and citator.
3. Collect all necessary volumes to ensure current
and complete coverage.

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 What is noter up?

Noting up a case
Finding a complete case history
Finding other decisions that have followed,
considered or not followed that particular case.
In other words, finding out if the case I good law.
Noting up legislation refers to finding cases
which apply or interpret an Act or a provision of an
Act. Other terms for the same function include "case
annotations", "legislation judicially considered", or
"statutes judicially considered".
 What is a Citator?

A citator is a tool that shows when and how a particular

legal authority has been cited; check legal history of a
case

It gives you quantitative information (the number of citing

references) and qualitative information (the kind of
treatment a particular legal authority has received); Check
how subsequent courts have treated the principles of law
in the source case over time.
 Why and when do we use
citators?

To trace the history of a given authority.

To verify that the authority youve found is still good law.
To evaluate the quality of the authority youve found.
To see how courts have treated the authority.
To find authorities that are on point in your jurisdiction
To expand research with additional authority that addresses
the same legal issues as the authority does.
To obtain references to secondary sources addressing the
same legal issues as the authority does.

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 What do the annotations'
in citators mean?
FOLLOWED This is used to denote that the principle of law established in the
(Folld) (diikut) case (or the dictum referred to) has been applied in the instant
case.
NOT FOLLOWED This is used where the court has consciously refused to follow a
(Not Folld) case although potentially relevant. It implies that the annotated
(tidak diikuti) case is wrong. If a case is not followed because of some
distinction in the facts or law, the proper annotation would be
(distinguished)
DISTINGUISHED This is used where the annotated case is not applied in the
(Distd) (dibeza) instant case due to some distinction in the facts or in the law.

OVERRULED (Overd) This is used only where a higher court has held the annotated
(ditolak) case to be wrong. Where the court has no power to overrule
(e.g. the Federal Court vis--vis a House of Lords decision), the
proper annotation would be (not followed).

REFERREED This is used to describe all the residual cases whose annotation
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(Refd) (dirujuk) does not fall within any of the above categories.
 Relationship between statutory law
(legislation) and case law (common law)

Legislation and the common

law exist side by side.
Legislation prevails over the
common law if there is a
conflict between them.
However, the common law
can and does affect
legislation and legislation
can affect the common law.

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 Relationship with Case Law

The legislature may

1) Pass statutes
which change the
common law.

2) Or create new statutory causes of action

which were not available at common law.
Relationship with Case Law

But the Courts may

1) Determine if legislative
acts are constitutional or
enacted under valid powers.

2) And create case law to determine how a

statute is to be interpreted or applied.
 How a case become a
Precedent?

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Precedent vs Legal Authority

The Precedent is a courts past decision,

recognized as authority.

Legal authority is a proof of lawful presence.

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 Part 3
Determining the Ambit of
the Legal Question
28th March 2013 10.30AM
The relevant
Jurisdiction
 Reception of English law to
Malaysia
Date Statutes Jurisdictions
1807 First Charter of Justice Statutory authority for introduction of English law
in Prince of Welshs Island.

1826 Second Charter of Justice Statutory authority for introduction of English law
into Prince of Welshs Island, Malacca and
Singapore.

1928 Law of Sarawak Ordinance Statutory authority for introduction of English law
into Sarawak.

1937 Civil Law Enactment (1937 FMS No 3) Statutory authority for introduction of English law
into Federated Malay States.

1938 Civil Law Ordinance 1938 Statutory authority for introduction of English law
into North Borneo (now Sabah).

1949 Application of Laws Ordinance 1949 Sarawak.

1951 Application of Laws Ordinance 1951 North Borneo (now Sabah).

1951 Civil Law (Extension) Ordinance 1951 Unfederated Malay States.

1956 Civil Law Act 1956 Federation of Malaya (including Penang and
Malacca).

1972 Civil Law Act 1956 (Revised 1972) Malaysia (including Sabah and Sarawak).
 English Law

Civil Law Act, 1956

Section 3 other than Commercial Law
Section 5 focusing on Commercial Law
Lacuna English Law will be applicable
subject fulfill the requirement laid down S. 3
& 5 of the Civil Law Act, 1956 and suitable
local environment.
 The authoritativeness in the
precedents

Decisions of higher courts are binding on lower courts and Regulations which
are inconsistent with the Acts of Parliament shall be void to the extent of
the inconsistency. There are two types of authoritativeness of precedent:

Authoritative precedents which are mandatory and binding

as precedent and must be applied by courts.

Persuasive precedents which are not of a binding

nature and may be accepted or rejected by courts.

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The authoritativeness of legal
authority

Types of Authoritative Persuasive

Authority (Mandatory Authority
/Binding)
Authority

Primary Law in applicable Law in a different

Jurisdiction Jurisdiction
Sources
(within Malaysia) (outside Malaysia)

Secondary Never Always

Sources
Hierarchy of judicial authority
Hierarchy of judicial authority

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Factors affecting authoritativeness of

the judicial precedents

Similarity of facts
Level of court
Reputation of judge
Era of a particular court
Unanimous or nearly unanimous higher than majority
Year
Within Commonwealth countries
Similar statutes
Reasoning within the decision and legal discussion
therein

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 Hierarchical Relationship of
Primary Authority
Authoritative Precedent
- Federal
1. Federal Constitution (Federation of Malaysia)
2. Treaties (Malaysia as part of the signatory countries)
3. Acts of Parliament
4. Federal Subsidiary Legislation
- States
1. State Constitution
2. State Enactments
3. State Subsidiary Legislation
4. Local Government Laws
- Case Law interpreting statutes, constitutional provisions
1. Same jurisdiction
a. Higher courts
b. Lower courts
Persuasive Precedent
- Parallel Court
- Obiter Dicta
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Hierarchy of authoritativeness of
statutory authority

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 the statutory authority

Under same jurisdiction

Level of law-making authorities
Relevancy of enactment with present requirements
Date come into force
Within enforcement period
Do not repeal
Legislation already considered by case law
Do not ultra-virus

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 Circumstances weakening the
binding force of precedents

Reversal
Overruling
Refusal to follow
Distinguishing
Ignorance of Statute Per incurium
Precedent sub silentio or not fully argued
Inconsistency with earlier decisions of high courts
Inconsistency with earlier decisions of the same rank
Decisions of equally divided courts
Erroneous Decisions
 Key Resources
Finding Primary authority
case law & legislation
Why consult case law

Case law is the interpretation of

law by the judge, or how that law
has been interpreted, enforced or
used in a particular case or legal
issue.

We needs to find examples of how

a particular law has been used or
interpreted by a judge after the
legislature made it a law.
 What is case law?

Case law is the law of reported judicial opinions.

Opinions are also known as reports or decisions.
NOT all opinions published; trial court opinions
are seldom published. A reported judicial opinion
may include: majority or plurality opinion,
concurrences or dissents, and a prefatory
syllabus.
 Question to ask when finding
case law

Is there any case on this particular

subject or issue?
Has this case been subsequently
judicially considered?
Has this case been reported?
Where do I get a copy of a case?
Finding & updating case law

How do we find case law?

Online use CLJ Legal Network, for

finding Malaysian cases
Online use Lexis-Nexis and Legal
Workbench for finding Commonwealth
cases
Manual use MLJ Consolidated Tables
on Cases Judicially Considered and
Legislation Judicially Considered , MLJ
Consolidated
 Case Law Tips

Look for binding authority first

Note: case law always primary authority
If there is insufficient mandatory
authority, look for primary persuasive
Read opinions in full and cite only to the
opinion itself
 Structure and layout of case
report

Parties
Court
Judge
Dates
Catchwords or phrases
Headnotes
Case cited
The ultimate finding in case law

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Where can you find unreported
cases?

MLJ CD-ROM MLJU (discontinued)

CLJ Online LNS (Legal Network Series)
All Malaysia Reports Monthly Unreported
Judgments List with catchword
CLJ Yearly Quaterly Index Unreported Judgment
List with catchwords
Why consult legislation

We will usually look for legislation or Act or

Statute as it commonly known in order to
understand the legal implications upon
obligations set by the law. Researching
statutes can also lead to cases.

If a statute is relevant to our research, find the

annotated version if possible. This will lead us
to relevant cases. In addition, we can use the
statutes citation as a keyword when we start
doing our case research.
 What is Bills?

A Bill is a proposed new law

introduced within a legislature that
has not been ratified, adopted, or
received assent. Once a bill has
become law, it is thereafter an Act.
Bills are officially published in the
Government gazette under the
Bills Supplement.
 Why you need to look at the
Bills?

The purpose of Explanatory

Statements in each Bill is to explain
what the Bill does it and how it does it. It
is also to inform Parliament of the main
impact on public expenditure. You may
need to look further at the Hansard (the
Parliamentary Official Report) to
understand the intention of the Bill/Act.
Question to ask when finding
legislation
Is there any legislation on this particular
subject or issue?
Where do I get a copy of this legislation?
When did this Act come into force?
Have there been any amendments to this Act?
Has this legislation been judicially
considered?
What is the legislative history of this Act?
Finding & updating legislation

How do we find the governing

legislation?
Online - use CLJ Legal Network

Online use LawNet (PNMB)

Online use Lexis-Nexis

Manual use Federal Statute Law

Referencer (ILBS) by S. Sivaswamy & S.
Ramswamy, Index of Federal Acts.
Why consult subsidiary
legislation

Subsidiary legislation is consulted when we

need to know the details of procedures on how
to comply with a law. There are three groups of
procedural law categorized under subsidiary
legislation:
Procedural law as issued by administrative
body as allowed by the Acts which detailing
about procedures is known as rules (kaedah)
and regulations (peraturan).
Orders (arahan) are procedural law as issued
by the executive as allowed by the Acts, such
as allowing exemptions on tax or duties to
certain individuals / organizations.
Laws made by local governments as
empowered to them are named as by-laws
(undang-undang kecil) which only applied to
respective jurisdictions.
Structure and layout of Act of
Parliament

Parties
Dates
Catchwords or phrases
Headnotes
Case cited
Finding & updating subsidiary
legislation

How do we find right subsidiary

legislation?

Online - use CLJ Legal Network

Online use LawNet (PNMB)

Online use Lexis-Nexis

Manual use Federal Statute Law

Referencer (ILBS) by S. Sivaswamy &
S. Ramswamy.
 Finding quasi-legislation

How do I find the explanatory practice notes/

directions?
On-Line
* For Practice Directions, use CLJ Legal Network, Malaysian Bar
Council website.
* For Court Circulars, use Federal Court Website
* For SC Guidelines and Practice Notes, use Securities
Commission website
* For other guidelines, check other ministries website.
Manual
* For Practice Directions, use Malaysian Court Practice.

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The ultimate finding in legislation
Applicable Time Period
 When is it time to stop
researching the law?

It is time to stop searching when:

The commentary becomes repetitive.
You have read the same point in a number of
sources
You notice that the same
cases/legislation/articles keep appearing
over and over.
When you have used a variety of appropriate
sources
You have discovered updated primary
authority and must revise your idea.
When cost exceeds benefit, i.e. you run out
of time
Completing Your Research

Did you address the question asked?

Did you research the correct jurisdiction?
Do you understand the area of law you are
researching?
Did you find enough applicable primary,
mandatory authority to answer the question?
If not, did you find relevant primary persuasive
authority?
Do you have the current language of all statutes?
Completing Research, contd

Did you use several methods to locate relevant

case law?
Did you validate statutes & cases using noter-up/
citator?
Did you use noter-up/ citator to expand your
research?
Did you check a secondary source near the end of
your research to see if you have found what there
is to find?
Do you keep finding the same materials
everywhere you look?
Proper legal citation
 What is legal citation?

Legal citation is the practice of

crediting and referring to
authoritative documents and
sources. The most common
sources of authority cited are
court decisions (cases),
statutes, regulations,
government documents,
treaties, and scholarly writing.
 How does one cite a case?

Name of parties, date, volume number, law report, page number

Abdul Rahman v Soon Ah Hai [1978] 2 MLJ 31.

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 How does one cite an Act?

Short title, enactment year, Act number, section

number

Copyright Act 1987, Act 332, s36, (b), (ii).

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 Paper vs. electronic research

Why youll need both

When to use each method
Sometimes only print will be available
Employers expert effective print
research
In many cases, print resources are
better (read: faster, cheaper, more
thorough)
Online is based on print system youll
be a better online searcher if you know
the print system.
 Summary

Legal research
Can be done in print and/or online
Is not linear, necessarily straightforward
Requires an awareness of what primary &
secondary materials are and where they can be
found
Can be frustrating, tedious
Requires patience and practice!