Malaysian Legal System

ALIZAH ALI

DEPT OF LAW

UITM BANDARAYA CAMPUS

1 hajah alizah haji ali

At the end of the class, student will able to

understand the topics as follows;

Classification of law – public/international/private

law

Sources of Malaysian Law – written/unwritten

Law process making

Court system in Malaysia


Rules and regulations.

The body of enacted or customary rules recognized by a

community as binding-

Oxford English Dictionary.

The body of principles recognized and applied by the

state in the administration of justice-

John Salmond, Jurisprudence.


CLASSIFICATION OF LAW

PUBLIC LAW

Constitutional law

Criminal law

INTERNATIONAL LAW

Public International law

private International

law

PRIVATE LAW

Contract Trust Tort


Public Law The law which governs the relationship

between individuals and the State.

Public law Constitutional law

Criminal law


Constitutional Law

Lays down the rights of

individuals in the State

e.g – rights of citizen

Criminal Law Codifies the

various offences committed by

individuals against the State


International Law

Body of law and rules of conduct which

States are bound to observe.

Can be created in two main ways: (i)By

treaty;(ii)By custom

International

law

Public International

Law

Private International

Law


Public International Law

Law that prevails between

States

Private International

Law It consists of the rules that guide a judge

when the laws of more than one country affect a case (conflict of

laws).


civil law

Law which affects the rights and duties of individuals amongst themselves

intended to give compensation to person injured, to enable property to be recovered from wrongdoers and to enforce obligation


Contract Law

agreement that have legal

effect

Tort Based on an

obligation imposed by law ie:

negligence, defamation,

assault, trespass

Trust An equitable obligation binding a person (trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries)


Meaning of the term sources:

= legal rules that make up the law in Malaysia.

Historical Sources Religious beliefs, local customs and opinion of

jurists.

Places where the law can be found Statutes, law reports, previous decisions of the

courts and text books.


Sources of Malaysian law

Written law

Federal / State

Constitution

Act / Enactmen

t / Ordinance

Subsidiary law

Unwritten law

English law

Syariah law

•Al-Quran •Hadith •Sunnah

•Qiyas

Judicial decision

Customary law

West Malaysia •Adat

temenggong •Adat

pepatih •Chinese&Hi

ndu customary

Law

East Malaysia •Adat

melayu •Adat

bumiputra •Chinese •Hindu

customary Law


WRITTEN LAW Federal/State Constituition

Act/Enactment/Ordinance

Subsidiary Legislation


The law that have been codified or recognized by the Federal and State Constitution. embodied in a code or statute including subsidiary or delegated legislation.


Supreme law of the land comprising 13 states the Federation. Laying down the powers of the Federal and State Governments and also enshrines the basic or fundamental rights of the individual. It was drafted by Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia.


The Constitution come into force following the independence on August 31, 1957.

AMMENDMEND

This Constitution can only be amended by a two-thirds (2/3) majority of the total number of members of the legislature.


Each State possesses its own constitution regulating the government of that State, known as ENACTMENT.

contains provisions which are enumerated in the Eight Schedule to the Federal Constitution E.g; matter discusse state executive members, finance, state legislative assembly, roles of the Sultan, etc)

Article 75 of the Fed Cons-’If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void’.


Federal constitution

Parliament

Federal list

Concurrent list

Act

State legislation

State list

Concurrent list

Ordinance

Before independence

During emergency

Sabah / Sarawak

enactment

Enactment


parliament

Legislation Subsidiary Legislation

Law enacted by a body constituted for

this purpose. Parliament at federal

level and by the various State Legislative

Assemblies at state level

Defined by the Interpretation Act

1967 as ‘any proclamation, rule, regulation, order,

notification, by-law or other instrument

made under any Ordinance,

Enactment or other lawful authority and

having legislative effect’.


First reading - Dewan rakyat

Minister formally introduce

the bill by having its short title read

2nd reading – dewan rakyat

Debate e bill & vote

Committee stage – examine the bill,

consider the amendment followed by a report & circulate

to all members

3rd reading – dewan negara

Same process with 2nd reading Amendment

-suggest amendment to dewan rakyat

Dewan rakyat may accept or reject the suggestion

No amendment

Art 66(3) FC; sent the bill to YDPA to get his assent

Art 66 (4); YDPA must absent within 30 days

Art 40 (1): YDPA act in accordance to the advice of cabinet

Art 66 (5): gazette the bill before officially enforced

LAW MAKING PROCESS


UNWRITTEN LAW English Law

Syariah Law

Judicial Decision

Customary Law


convenient reference to that portion of Malaysian law which is not enacted by the legislature (Parliament and the State Assemblies) and which is not found in the Constitutions, both Federal and State.


1. ENGLISH LAW Has been received in Msia and it is done either expressly or by implication. Section 3(1) of Civil Law Act 1956-Where the court is required to apply…… “(a) in West Msia or any part thereof…..the common law of England and the rules of equity as administered in England on the 7th of April 1956,

(b) in Sabah….the common law of England and the rules of Equity, together with statutes of general application, as administered or in force in England on the 1st of December, 1951 and (c) in Sarawak…...the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th of December, 1949”.


Section 5 (1) CLA 1956- Application of English Law in commercial matters in the States of West Malaysia other than Malacca and Penang….’the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law’.

Section 5 (2) CLA 1956- Application of English Law in commercial matters in the States of Malacca, Penang, Sabah and Sarawak….’the law to be administered shall be the same as would be administered in England, in the like case at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law’.


As for English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any estate, right or interest therein applies in Malaysia.

In Malaysia, National Land Code is the law that governs the land matters and there is no any allowance for English Land Law unless the national land code applies it for the judicial comity

Refer to case UMBC v. PEMUNGUT HASIL TANAH KOTA TINGGI (1984)


1. It is only applied in the absence of local statutes covering the same matter (only to fill in the lacuna in the local system)

2. Only that part of the English Law that is suited to the local circumstances will be applied.


Common Law-Also known as judge-made

law. Refers to law laid down by judges sitting in the superior courts as distinct from statute law enacted by the legislature.

Equity-Was introduced to reduce the harshness

of common law. It was developed out of the need to provide the plaintiff with relief where the strict common law rules granted as an unsatisfactory remedy or no remedy at all.


Major source of Malaysian Law but only applicable to Muslims and enacted under the Federal Constitution. It is administered by a separate Shari’ah Courts. Article 3 of Fed Cons-Islam to be the religion of Malaysia but other religions may be practiced in peace and harmony. The state legislature have the power and permitted to make Islamic Laws pertaining to person professing the religion. Such law are administered by separate court system, Syariah Courts. State legislature also has the jurisdiction over the constitution, organization and procedures of syariah courts. Now Islamic laws are increasingly applied in banking and land laws other than applied to family and estate matters.


Al-Quran

Al-Hadith

Ijma’ Ulama’

Qiyas


Case Law-Refers to past cases or case report eg: Malayan Law Journal and Current Law Journal.

It refers to judicial decision of the court which is refer by the latter court as a guide to decide future case as similar facts and situation-Land mark to other cases.

Case Law become as sources of law according to doctrine of binding judicial precedent/Doctrine of stare decisis. Precedents are the decisions made by judges previously in similar circumstances.


• Refers to norms, behaviors, practices and beliefs which is carried by one generation to another. It is not specific and may be different to one another.

• As a general rule, the customs of a local inhabitants relating to marriage, divorce and inheritance are given legal force by the courts and some are dealt with by certain specific enactments.

• Judicial recognition of customs is quite common in a country populated by variety of people with diverse culture and religious background.


WEST MALAYSIA

• Adat Temenggung

• Adat Pepatih

• Chinese & Hindu customary Law

EAST MALAYSIA

Adat Bumiputera

Chinese & Hindu customary Law


ADMINISTRATION OF JUSTICE


Federal court

Court of appeal

High court of Malaya

Sessions court

Magistrates court

Penghulu court

High court of Borneo

(Sabah & Sarawak)

Sessions court

Magistrates court

Native court

Su

bo

rdin

ate

co

urt

S

up

erio

r co

urt


To hear civil and criminal determine appeals from decisions of the Court of Appeal and the High Court

To exercise its original jurisdiction. (e.g: Hear dispute on any matter between any State and Federal Government)

To determine constitutional questions

To give its opinion on any questions referred to it by the YDPA concerning the effect of any provision of the Constitution.


To hear and determine any appeal against any High Court decision on criminal matters

To hear and determine any civil appeals generally for cases where the amount or value of the subject matter of the claim is at least RM250, 000.


1. Original Jurisdiction

It has unlimited criminal and civil powers.

Any civil matters which cannot be determined in the subordinate courts is heard before the High Court.

2. Appellate Jurisdiction

Hears criminal and civil appeals from the Magistrates’ and Session Court.

3. general, supervisory and reversionary jurisdiction over all subordinate


4. validity/dissolution of marriage (nonmuslim)

5. Bankruptcy / winding up companies

6. guardianship / custody of children

7. Grants of probates, wills, letter of

administration

8. injunction, SP, rescission of contract

9. Matters relating to land

10. Auction and foreclosure


Criminal Jurisdiction

All offences other than offences punishable with death penalty

Civil Jurisdiction

Try all actions and suits of a civil nature where the amount of dispute or value of the subject matter does not exceed RM250, 000.

Matters relating to road accident, landlords and tenants dispute.


FIRST CLASS MAGISTRATE


Criminal offences for which the maximum term of punishment provided by the law does not exceed:

◦ 10 years’ imprisonment or

◦ all offences punishable with fine only

◦ Offences of robbery, lurking, house trespass or house breaking at night

- Power to pass sentence: -

◦ 5 years’ imprisonment

◦ a fine of RM10, 000

◦ Whipping up to 12 strokes

◦ The combination of any of the above

Civil Jurisdiction

Try all actions and suits of a civil nature where the amount of dispute or value of the subject matter does not exceed RM25, 000.


SECOND CLASS MAGISTRATE


- Criminal offences for which the maximum term of punishment provided by the law does not exceed:

◦ 12 months’ imprisonment or

◦ all offences punishable with fine only

- Power to pass sentence: -

◦ 6 months’ imprisonment

◦ a fine not more than RM1, 000

◦ any sentence combining either of the aforesaid sentences

Civil Jurisdiction

Try all actions and suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand on money payable by the defendant with or without interest not exceeding RM3, 000.


The lowest court system which only applicable in village/rural/remote area

Presided by ketua kampung (Malay head)

For ASEAN race who can speak and understand Malay language

Jurisdiction –

civil matter below RM50

Criminal simple offence minor in nature punishe d with fine not exceeding RM25


i- SABAH AND SARAWAK COURT (NATIVE

COURT)

-having jurisdiction relating to native/custom

ii- JUVENILE COURT

-involve minor except case relating to death

penalty High court


SYARIAH COURT

-unlimited jurisdiction over Syariah matter

- Only bound on Muslim on that particular state only

- Pass sentence not more than 3 years imprisonment, fine RM 5000 or 6 strokes


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Malaysian Legal System

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