Legislation Legislation refers to law enacted by a body constitutedfor this purpose. Legislationiscarriedout byparliament at theFederallevel and by the various State Legislative Assemblies fortheir respective states. Article 44 of the FC. Laws enacted by Federal Parliament: Acts but thosemade between the period of the !alayan "nion in#$4% and #& September #$'$ are called (rdinances. Laws made by SLA: )nactments. Sabah*Sarawa+: (rdinances. "nder Article #'& of FC the ,-PA can proclaimastate of emergency and during that duration ofemergency e.cept when both /ouses of Parliamentare sitting concurrently the ,-PA may promulgatelaws whichwill becalled(rdinances if satisfiedthat certaincircumstances render it necessaryforhim to ta+e immediate action. Federal and State Legislatures are not supreme. 0hey enactlaws withinthe limitsprescribedbythe Federaland StateConstitutions. Federal Parliament: List 1 of the 2inth Schedule. SLA: List 11 of the 2inth Schedule. 3oth: Concurrent list. !atters not enumeratedinanyof the lists will fallwithin the authority of the states. 4States e.erciseresidual power53ills 3ills introduced in Parliament may be classified asPrivate 3ills Private !ember6s 3ill /ybrid 3ills or7overnment 3ills. Private 3ills: 3ills affecting limitedor particularpersons or group of persons associationsorgani8ations or bodies. Private !ember6s 3ill: 1ntroduced by any member ofthe legislature other thana !inister or Assistant!inister. /ybrid 3ills: !ay be of general application and areintroducedbyeithera!inisterorprivatememberbut they belong to thatclass ofbillswhichin theopinion of the Spea+er or President of Senate as thecasemaybe appear toaffect individual rightsorinterests adversely. 7overnment 3ills: -eal with matters of governmentpolicy and are of general application. 1ntroduced byministers. Legislative Process A bill is normally presented to Parliament by the !inisterresponsible for the particular portfolio. 0his3ill maybefirst introducedineither/ouse. 1fit ispassed after debate and voting in the chamber from which itoriginates it is sent to the other chamber. 9hen it has been approved by both /ouses it is presentedto the ,-PA for the :oyal Assent. Abill becomes lawon receiving the :oyal Assent butArticle %%4'5: ;no law shall come into force until it has beenpublished; Stages of Passinga3ill: First :eading Second:eadingCommittee Stage and 0hird :eading. A minister who wants to introduce a 3ill is re?& in AA. #4&& lawyers 4volunteers5 As legal aid scheme is meant only for the poor and needypeople see+ing legal aid must undergo a ;mean test;. Applicants who own assets of above a certain level maynot . 0he facts onwhich the proceesings arebased e.ist or alleged to have occured4. Any land the ownership of which isdisputed is situated within the local=urisdiction. Specific =urisdiction:#. -ivorce or matrimonial causesA. Admiralty cases>. 3an+ruptcy and companies4. Appointment andcontrol ofguardiansofinfants'. Appointment and control of guardians and+eepers of the personandestates ofidiots mentally disordered personsunsound mind.%. 7ranting altering or revo+ing probatesof wills and letters of administration ofthe estates of deceased persons. Criminal 7eneral rule: /igh Court has=urisdictionover people 4citi8ens andnonciti8ens5 andoffences committedwithin its territory. ).ception: Eurisdiction over people4citi8ens andpermanentresidents5andoffences committed outside !alaysia4e.traterritorial =urisdiction5. 0he Attorney7eneral maye.tendthee.traterritorial=urisdictionof the/ighCourt to any offence under any writtenlaw committed abroad by citi8ens andpermanent resident. Appellate Civil 2o appeal to /igh Court from a decisionof a subordinate court in any civil cause ormatter where the amount in dispute or thevalue of the sub=ect matter is less than:!#&&&&. !onetary limit does not apply to decisionsof a subordinate court in proceedingsconcerning maintenance of wives orchildren. Criminal /igh Court can hear appeals fromsubordinate courts according to any law inforce within territorial =urisdiction. 2o appeal can be made to the /igh Courtfromasubordinatecourt concerninganyoffence punishable with fine only note.ceeding :!A'. 2o appeal by person who has pleadedguilty. 2o appeal against ac# of CEA: /igh Court can revisecriminal proceedingsinsubordinatecourtsin accordance with any law. Sec >A of CEA: Power to call for ande.amine the records of any civilproceedingsbeforeanysubordinatecourtsto satisfy itself as to the correctness legalityof any proceedings. Sec >' of CEA: /igh court may give to thesubordinate court directions for the furtherconduct of thecase@ inanysubordinatecourt at any stage of the proceeding. :eviewof the-ecisions of other Eudicial*Juasi@Eudicial bodies :eviewdecisions of & 2ovember #$$A. Article #?A: consists of Chief Eustice of theFederal Court Chief Eudges of the /igh Courtsandtwootherpersonswhoholdorhaveheldoffice of rge Fed Court of /igh Court appointedby the Conference of :ulers. -ecision made by the ma=ority of its membersand is final @ cannot be challenged in any courtson any ground. Eurisdiction ).clusive =urisdiction over all proceedings by oragainst the ,-PA or the :uler of a state in hispersonal capacity. Suchproceedingscannot beinstitutedwithoutthe consent of the Attorney 7eneral @ to ensurethere is a prima facie case. (nly citi8ens of !alaysia have the right toinstitute such proceedings. 9here the ,-PA or :uler of a state is chargedwith an offence under any law in the Special Courthe will cease to e.ercise their functions. 9here a ruler is convicted of an offence andsentenced to imprisonment for more than a day hewill cease to be the :uler unless he receives pardonfrom the Conference.$. Court for Children Aimistoprotecttheinterestsofthechildrenwhoappearbefore them. Courts Act A& provides measures that are intended to ta+echildren away from the adult criminal =ustice system and toprotect them from publicity. A child offender must be detained in a place designatedunder the CA A& @ accomodation in police station cellor loc+@up separate from adult offenders. CFC must sit in a building or room different fromthat in which sittings of ordinary courts are held. Proceedings are not open to public. Persons permitted: court members and officersthe childintrialparents guardians advocatesand witness and othe persons determined by thecourt. !edia may not reveal any particulars that may leadto identification of the child offender. A child means a person under #? a person who hasattained the age of criminal responsibility CFC comprises: A magistrate who must be assistedby two advisers one of whom must be a woman. Absence of either one or both advisers renders theproceeding unlawful. Eurisdiction and Powers 0ryall offences bychildoffenders e.cept thosepunishable by death. 0here are several orders the court may impose upona finding of guilt Sendingthechildtoapprovedinstitutionsuchas/enry 7urney School 9hipping not more than #& stro+es of light cane Any term of imprisonment which could be awardedby a Sessions Court if the offender is aged #4N andthe offence is punishable with imprisonment. 0he PP any child or his parent aggrived by the order ofthe CFC may appeal to the /igh Court in accordancewiththeprovisionsset out intheCriminal ProcedureCode.Customary La% and Adat Customary lawderived fromcustoms and traditionsobserved by !alays over the centuries. Aregular patternof social behavior whichhas beenaccepted by the bul+ of a given society as binding uponits members. Customary laws are personal laws which are applicableto particular racial religious or ethnic groups. 0he applicationof customarylaws in!alayia has beenaccomodatednthe legal systemsincepre@colonial timesalthoughactual formali8ationof the status occuredafter3ritish coloni8ation. Customs of the plural population are varied and somecustoms particularly in the areas of family law andcustomary forms of land tenure are given legal recognitionin =udicial decisions and statutes. Case: Sahripv.!itchell H)ndain4#?DD5 thecustomaryforms of !alay land tenure which provided for the paymentif a tithe was accepted by the court.#. !alay Adat Adat Perpatih Adistinct tradition practised among the !alays inpresent day2egeri Sembilanand2aningin!ela+aareas settled by !inang+abau immigrants fromSumatra. Adat perpatihispractisedinsuchmattersaslandtenure inheritence lineageandtheelectinof thetraditional chiefs or adat officialdomsuchas thelembagas undangs and the ,ang -i Pertuan 3esar. !ost conspicuous characteristic of the adat perpatihis the matrilineal form of social organi8ation. A lua+ has four clans and each lua+ is controlled byan undang. Adat perpatih finds e.pression in traditional versesand sayings of the matriarchal tribes in 2egeriSembilan. Powerinthefamilywaslaidinthehandsofthemama+ 4mother6s eldest brother5 then in the handsof sub@tribe heads 4perut5 who were called buapa+.0hisisfollowedbythetribal chiefs6 lembaga theterritorial heads undang and finally the :uler ,ang-ipertuan 3esar or ,amtuan. 0hebuapa+wouldbeelectedbythemama+ thelembaga by the buapa+ the "ndang by the lembagaand the ,amtuan by the "ndang. A ,amtuan must come from the royal family. -emocratic @ e.ists in a peasant society. 1ncriminal mattersthefamilywasresponsiblefor itsmembers. 9henacrimewascommitted theaccusedwould be tried by his own family. At the end of the trialifthefamilycametotheconclusionthat theaccusedwasguilty therewouldbenoalternativebut to+illbanish or enslave him. Adat perpatih was +een on penalties such as restitutionand compensation of the in=ured rather than punishmentor revenge on the offender. 3ut when a victim 4bread winner5 was murdered as acompensation the +iller6s tribe was compelled tosubstitute ie of their family members for the victim orpay blood money to the victim6s family. Adat perpatih gives too much importance tocircumstantial evidence. 1n a case of theft even thoughthe theft had not been proved but if the suspect behaveddifferently his behaviour itself would be enough undercircumstantial evidence to find the suspect guilty. Adar lawwithrespect of landis givenstatutoryrecognition 0anahpesa+a: ancestral landthat canonlybeinheritedbyfemaledescendantsofadeceasedholder. 0here is a =udicial authority stating thattanah pesa+a in 2aning is not transferable to aperson who is not a member of the owner6s clan. /arta sepencarian: property =ointly ac:afflesappointed#Amagistrates totryminorcivil and criminal cases under supervision of the :esident.!ela+a (ccupied in #D$' but returned to -utch in #?#?. -uring that brief occupation the 3ritish did not give seriousattention to the reorgani8ation of the administration of!ela+a. !ela+a was retroceded under #?A4 Anglo@-utch 0reaty. 3ritish planned to establish a regular administration of law.0he Straits Settlement 4#?A%5 !ela+a PenangandSingaporewereincorporatedintotheStraits Settlemets.Second Charter of Eustice 4#?A%5 7ranted by Bing 7eorge 1C to the Settlements. 0his charter repealed such parts of the First Charter whichconferred =urisdiction upon the Court of Eudicature inPenang @ replaced by a new court of Eudicature for PenangSingapore and !ela+a. Eudiciallyinterpretedas having introduced )nglishlawe.isting in )ngland on AD 2ovember #?A% into all threesettlements. Sir )dward Stanley: 1t gave the local inhabitants the freee.ercise of their religions customs usages and habits. 0he administration of =ustice after the grant of theSecond Charter of Eustice remained unsatisfactory. :ecorder: (nly one based in Penang seldom visited!ela+a and Singapore. Lay =ustices: made many bad decisions.0hird Charter of Eustice 4#?''5 0o remedy the deficiencies in the system. :eorgani8e the courts system. Lay =ustices ceased to sit. :epealed the second charter of =ustice only to the e.tentnecessary to reorgani8e the Court of Eudicature. 0hecourt wassplit intotwo: oneforPenang onefor!ela+a and Singapore. )ach with its own :ecorder and:egistrar. )nglish law was introduced into the Straits Settlements notonly through Charters of Eustice but also legislation. )nglish and 1ndian statutes enacted before #stApril#?%D.:eception of )nglish law in the !alay States !alaystates hads basiclawbefore3ritishinterventionI!alay adat and Syariah law. :E 9il+inson: ;0herecanbenodoubt that !uslimlawwould have ended by becoming the law of !alaya had not3ritish Law stepped in to chec+ it.; 0o non@!alays were governed by their personal laws or ifthey were 3ritish sub=ects )nglish law. !alay :ulers concluded treaties in return for 3ritishprotection against e.ternal attac+s agreed to accept 3ritishadvisers whose advice had to be sought and acted upon in allmatters e.cept those concerning 1slam and !alay custom )nglish law was introduced informally through the:esidential system in two ways 0he enactment of a number of specific legislation on theadvice of 3ritish administrators. 0he decisions of the courts established by the 3ritishadministrators. Application of )nglish law1. 'eneral Appli#ation of &nglish la% Section > of the Civil Law Act #$'%. 1ntheabsenceof writtenlaw thecourts in!alaysiashall apply the common law and rules of el ?a(anathan [!!@# the court held that the3ritish -omestic Ciolence and !atrimonial Proceedings Act#$D%andthe)nglishauthorities decidedrelatingtheretomay not be binding in our country. Case:Push)aha>)M--?ajoov.Malaysian.oAo)erativeBnsuran3e -o3iety 'td & Anor [!!4# the plaintiff sought toinvo+e an )nglish statutory provision to revo+e anominationbyherdeceasedhusbandinhislifeinsurancepolicy made before their marriage. 0he =udge dismissed theapplication on the ground that Sec > of the CLA allows theapplicationof the common lawof )nglandandrule of)l -andaraju v. Publi3Prose3utor [!!,# illustrates the departure ofFederal Court fromits own previous decision.Federal Court declined to follow its previousdecision in :an Boon &ean v. Publi3 Prose3utor becausethe Federal Court in that case misunderstood the ratio inthe Supreme Court decision in &hoo Ci .hiang. 0he practice of the present Federal Court in civil matters isthe same as incriminal mattersI while treatingpreviousdecisions as normally binding the Federal Court will departfrom a previous decision when it appears right to do so.Court of Appeal Case: &esultanan Pahang v. -athas2 ?ealty -dn Bhd [!!,#the Court of Appeal was urged by the cousel to re=ect thedecisionmadeinthecaseof-yari2at &enderaanMelayu&elantan -dn Bhd v. :rans)ort For2ers 5nion [!!4#.Abdul !ale+ ECA re=ected the invitation on the ground interalia that ;we are bound by our own decisions;/ori8ontal Stare -ecisis: 0he decision of superior courts especially Federal Court andCourt of Appeal bind their future decision in respect of caseshaving same material facts and ratio decidendi. Similarity of material facts: 0he =udge must ensure that the cases referred and tobe followed contain similar material facts. ).ample: 1n A&&& A bought a bottle of ginger beer dran+it and suffered diarrhea and other illness due tothe presence of decomposed snail in the bottle.0he person successfully sued the manufacturerfor negligence in the manufacture of theproduct. -ecided by C(A. 1n a subse