malaysian legal system

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TOPIC 1

MALAYSIAN LEGAL SYSTEM

Law 416 (Business Law)

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Malaysian Legal System

(1) SOURCES OF LAW IN MALAYSIA

1.1 Federal and State constitution 1.2 Federal and State legislation 1.3 Subsidiary legislation 1.4 English Common law and equity 1.5 Customs 1.6 Judicial precedent 1.7 Islamic law law

(2) LEGISLATIVE PROCESS IN MALAYSIA

(3) ADMINISTRATION OF JUSTICE

3.1 Hierarchy of the courts 3.2 Jurisdiction of the Courts

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1. Sources of Malaysian Law

LEGAL SOURCES OF MALAYSIAN LAW

UNWRITTEN LAW

WRITTEN LAW

SHARIAH LAW

FEDERALCONSTITUTION

STATE CONSTITUTION

CUSTOMS(ADAT)

ENGLISH LAW

JUDICIAL PRECEDENT

LEGISLATION

SUBSIDIARY LEGISLATION

Common Law

Equity

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SOURCES OF MALAYSIAN LAW

Written law is the most important source of law. It refers to the portion of the Malaysian law which includes the following:

The Federal ConstitutionThe State ConstitutionLegislationSubsidiary Legislation

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Unwritten law is simply that portion of the Malaysian law which is not written.

i.e. law which is not being enacted by the Parliament or State Assemblies and which is not found in the written Federal and State Constitutions.

Unwritten law is found in cases decided by the courts, local customs, etc. The unwritten law comprises the following:

English Law Customs Judicial Precedents

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FEDERAL AND STATE CONSTITUTION

1.1 The Federal Constitution (FC) Art 4- The supreme law of the land; any laws passed

after Merdeka Day which is inconsistent with this Constitution shall to the extend of inconsistency, be void.

The FC enshrines the basic or the fundamental rights of individuals. These rights written in the Constitution can only be changed by a two-thirds majority of the total number of members of the legislature. This is in contrast to normal laws which can be amended by a simple majority.

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FEDERAL AND STATE CONSTITUTION

The State ConstitutionThere are also Constitutions of the 13

States comprising the Federation, which forms part of written law in Malaysia.

Some of these provisions include matters concerning the Ruler, the Executive Council, the Legislature, etc.

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1.2 FEDERAL AND STATE LEGISLATION

Legislation refers to law enacted by a body constituted for this purpose. In Malaysia, laws are legislated by the Parliament at the Federal level and by various State Legislative Assemblies at the state level.

Laws that are enacted by the Parliament after 1946 but before Malaysia’s Independence in 1957 are called Ordinance, but those made after 1957 are called Acts. On the other hand, laws made by the State Legislative Assemblies (except Sarawak) are called Enactments. The laws in Sarawak are called Ordinances.

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Legislation refers to law enacted by :

(a) Parliament

(b) State Legislative Assemblies

PARLIAMENT STATES LEGISLATIVE ASSEMBLIES

Enacts law at Federal level Enacts law at State level

Within limits prescribed by Federal Constitution

Within limits prescribed by State Constitution

Law enacted before 31.08.1957 are called Ordinance

Law enacted by State Assemblies are called Enactment except Sarawak laws are called Ordinance

Law enacted after 31.08.1957 are called Acts

State Legislative Assembly can enact law in matters listed in List II of the Nine Schedule

Parliament can enact laws in matters listed in list I of the Nine Schedule

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LEGISLATIVE PROCESS IN MALAYSIA

(How bill becomes law?)

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LEGISLATIVE PROCESS IN MALAYSIAFIRST READING

When a Bill is first introduced in one of the two houses, only the title is actually read. After the Bill is passed at this stage, the text is printed and distributed.

SECOND READING

Members debate the Bill. If accepted, the Bill is passed on for consideration by a committee of the house.

A COMMITTEE OF HOUSE

Considers the Bill in detail and may amend any part of it. The Committee then submits a report on the Bill to the house. If the report is approved, the Bill goes on to a third reading in the House.

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THIRD READING

Debate takes place and amendments may be put to a note. The House then either passes or defeats the Bill.

3ROYAL ASSENT

When the Bill has passed both Houses in accordance with Art. 68 (Fed. Consti.), it is sent to the Yang Di-Pertuan Agong for the Royal Assent. The Bill then becomes a law upon publication.

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OTHER HOUSES

When a Bill has passed one House, it is sent to the other house, where it follows a similar pattern. If the second house amends the Bill, the Bill must be returned to the first house for its approval

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1.3 Subsidiary Legislation/Delegated Legislation

Interpretation Act 1948 and 1967:Subsidiary Legislation means any proclamation, rule, regulation, order, notification,or other instrument made under any Ordinance, enactment or other lawful authority and having legislative effect

Subsidiary Legislation is very important as legislation by the Parliament and the State Legislatures is insufficient to provide the laws required to govern everyday matters. Subsidiary legislation deals with the details about which legislature has neither the time nor the technical knowledge to enact laws.

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1.4 ENGLISH COMMON LAW AND EQUITY

• English law comprises of two parts:(a) Common Law

(b) Equity

Sec 3(1) Civil Law Act 1956- in West Malaysia, the courts shall apply the Common Law of England and the Rules of Equity as administered in England on the 07.04.1956 (cut off date)

In Sabah and Sarawak, the courts shall apply the English Common law and Rules of Equity, together with statutes of general application, as administered or force in England on the 01.12.1951 and Sarawak 12.12.1949 respectively.

After the cut off date, English law does not become law in Malaysia. Thus, Section 3 (1) connotes the strict application of the English law in Malaysia before the cut of date.

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1.5 Customs(Adat)

CUSTOMS

MALAY CHINESE INDIAN

ADAT PERPATIH

CHINESE CUSTOMARY

LAW

INDIAN CUSTOMARY

LAW

ADAT TEMENGGUNG

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1.6 Judicial Precedents

Judicial Precedents are decisions made by a previous judge in previous cases that have similar situations.

Decisions of these courts were made, and still are being made systematically by the use of what is called the ‘doctrine of binding judicial precedent’ or the rule of stare decisis i.e. to stand by cases already decided.

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Two categories of judicial precedents:

(i) Binding All decisions of higher courts bind the lower courts The higher courts are bound by their own decision

(ii) Persuasive High Court Judges are not bound to follow the

decisions of another High Court Judges Decisions from outside of the Malaysian Courts

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DOCTRINE OF JUDICIAL PRECEDENT:

FEDERAL COURT(FC)

COURT OF APPEAL(COA)

HIGH COURT(HC)

SUBORDINATE COURTS(SC)

Decisions of Federal Court binds all lower courts

COA is bound by the decision of FC.COA’s decision is binding on all lower courts.COA is also bound by its own decision

HC decision is binding on all subordinate courts

Bound by the decisions of the superior courts.

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Advantages of the doctrine:

(i) the law evolved is more practical, being the result of actual disputes rather than hypothetical situations

(ii) there is a degree of certainty and predictability in the law

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1.7 Shariah Law

Primary Sources: Al-Quran & As-Sunnah Secondary Sources: Ijma’, Qiyas, Ijtihad etc.Ramah v. Laton (1927) 6 FMSLR 1278;

Islamic law is not foreign law but local law and the law of the land.

Art 3 FC- Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.

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Article 11 of the Federal Constitution provides that every person has the right to profess and practise his religion.

The FC sets out that Islamic law in Malaysia is confined to the personal laws and within the powers of the State.

It can be said that the jurisdiction given by the State and Shariah courts is limited.

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HIERARCHY OF COURTFederal court

Court of Appeal

Magistrates’ court

High Court (Sabah & Sarawak)

Magistrates’ Court for Children

Magistrates’ Court for Children

High Court(West Malaysia)

Magistrates’ Court

Sessions CourtSessions Court

Penghulu Court

Native Court

Shariah Court

Shariah Court

SUPERIOR COURTS

SUBORDINATE COURTS

SPECIAL COURT

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COURT SYSTEM

Courts are divided into two categories:(i) Superior Courts:

- Federal Court- Court of Appeal- High Court

(ii)  Subordinate Courts:- Sessions Court- Magistrates’ Court- Magistrates’ Court for Children

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1. Federal Court (FCt)

FCt replaced the Supreme Court in mid-1994 as the highest court.

FCt is the highest court in Malaysia.Instituted by Article 121 of the Federal

Constitution.

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2. Court of Appeal (COA)

The COA was established under Article 121 of the Federal Constitution.

On 24.06.1994, the COA was created to act as an intermediate appeal chamber before proceeding straight to the FC.

The composition of its judicial personnel is prescribed in Article 122A of the Constitution.

Proceedings is heard and disposed of three judges or such greater uneven number of judges as the President may in any particular case determine i.e. three judges at any one time OR more (but must be of uneven numbers i.e. 5, 7, 9,11) Decisions are made by majority i.e. 2:1 (2 to 1), 3:2, 4:3, 5:4.

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Court of Appeal

Section 50 and 67 of the Courts of Judicature Act 1964 The court can hear both Civil and Criminal appeal cases.

Civil Appeal Cases Has jurisdiction to hear and determine civil appeals for cases where the

amount or value of the subject matter of the claim is more than RM 250,000.

If the amount is less than RM250,000 the parties must get the permission from the Court of Appeal.

Criminal Appeal Cases Has jurisdiction to hear and determine any appeal against the decision

of the High Court.

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3. High Court (HC)

Established under Article 121(1) of the Federal Constitution.

There are 2 High Courts of co-ordinate jurisdiction in Malaysia:(i)   High Court for West Malaysia(ii)  High Court in Sabah and Sarawak

Each of the two High Courts is headed by a Chief Judge.

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High Court (HC)

Sections 22, 23 and 24 of Courts of Judicature Act 1964 lay down the criminal and civil jurisdiction of the High Court.

Deals with offences punishable with death.

The general jurisdictional rule in relation to criminal matters is reflected in Section 22(1)(a) of the Courts of Judicature Act 1964.

Has unlimited jurisdiction to try all civil proceedings within the local jurisdiction of the court.

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4. Sessions Court (SC)

A SC is under the charge of a SC judge.

Under Section 54 of the Subordinate Courts Act, the SC assumes a limited supervisory role over the Magistrates’ and Penghulu’s courts.

The purpose for such action is to ensure the correctness, legality or propriety of the decision recorded or arrived at, and the regularity of the proceedings.

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Session Court

Civil cases All suits where the amount in dispute or the subject matter

does not exceed RM250,000. May entertain cases above RM250,000 if it concerns motor

vehicles accident, landlord and tenant. May not entertain even if its below RM250,000 if it concerns;

divorce, bankruptcy, enforcement of trust, specific performance, injunction. (determined by the High Court)

Criminal cases All offences other than offences punishable with death. May

impose any sentence allowed except sentence of death.

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5. Magistrates’ Court (MC)

Familiar to most urban people as it is established in all major towns and sometimes goes on circuit to regional areas.

This court has the jurisdiction to hear civil cases and criminal cases.

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Magistrates’ Court

This court has the jurisdiction to hear civil cases and criminal cases. There are two (2) types of classes of magistrate i.e. First Class and Second Class

First Class Court:

Criminal – To try all offences punishable with up to 10 years imprisonment or with fine only and offences related to punishment for robbery and house breaking by night.

Civil - To try all litigations where the matter in dispute or subject matter does not exceed RM25,000.

Second Class Court:

Civil - Performs minor function i.e. granting bail, mentioning cases. Criminal – Only to deal with cases where the maximum punishment imposed is

no more than 12 months imprisonment or which is punishable with a fine only.

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6. Magistrates’ Court for Children (MCC)

Established under the Child Act 2001 (Act 611).

The court has the jurisdiction to hear cases regarding offenders between the age of 10 – 18 years.

It can try all offences except those punishable by death and it is presided by a First Class Magistrate and 2 advisors.

The philosophy of creating a special court is that children need care and attention and offenders should be treated differently from adult ones and with compassion.

When a juvenile is found guilty, they are sent to ‘corrective’ school i.e. Henry Gurney School, Melaka.

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7. Penghulu’s Court

At the lowest level of the court hierarchy in West Malaysia

Presided by a Penghulu or Headman appointed by the state government for a mukim which is an administrative district

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Penghulu’s Court

To try civil disputes where the subject-matter does not exceed RM50 in value and in criminal cases, to impose a fine not exceeding RM25.