INTRODUCTION TO THE

MALAYSIAN LEGAL SYSTEM

First LecturePrepared by Misyail Othman

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What is LAW?

Lord Denning:"Be you ever so

high, the law is above you."

A body of rules of conduct of binding legal

force and effect, prescribed, recognized,

and enforced by controlling authority.

The system of rules which a

particular country or community recognizes as regulating the actions of its members and which it may

enforce by the imposition of

penalties.

Why we need LAW?

To protect the lives and liberties of citizens without violating the rights of some to provide gains to others

Law is a set of rules and regulations that one has to obey in order to maintain peace and harmony in the socity.

To establish balance between conflicting interests in the society

Sources of Malaysian Law

Islamic laws The adat or customary law The Federal Constitution Constitutions of each of the 13 States of

Malaysia Federal Acts of Parliament State Enactments Subsidiary Legislation Judicial decision (case law) based on the

interpretation and application of law by the judiciary

The law making process

* The people elect the representatives

* The elected representatives

become the member of the House of

Representatives* The House of

Representatives tabled the legislative

bill* The legislative bill becomes a law when it is passes both the

House of Representatives & House of Senate

(House of Parliament)

* The Yang Di Pertuan Agong (YDPA) appoints the Prime Minister and other Ministers from among the members

of either House of Parliament

* The Prime Minister + the ministers = the Cabinet

* A legislative bill that is to be introduced by the Cabinet is drafted by the ministry having

the jurisdiction. * When the bill is

passed by the Parliament, the

relevant Ministry will enfoce the law accordingly

* The judiciary /courts interpret law, including constitutions, statutes, and regulations and applies it to the facts of each case

* The term "judiciary" is also used to refer collectively to the

personnel, such as judges and magistrates

3 branches of Government

Government

ExecutiveLegislature

Judiciary

The Executive Article 39 of the Federal Constitution provides the

executive authority to the Yang Di-Pertuan Agong (YDPA) and exercisable by him or by the Cabinet or any Minister authorised by the Cabinet, but parliament may by law confer executive functions on other persons.

Article 40 of the Federal Constitution provieds “YDPA shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet

The Cabinet consists of the Prime Minister (PM) appointed by the YDPA (who is a member of House of Representatives) and other Ministers appointed by the YDPA upon the advice of the PM who are among the members of either House of Parliament

The Legislature A body of persons vested with power to make, amend,

and repeal laws In a representative democracy the legislature acts as the

eyes, ears, and voice of the people: "[T]he proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts, to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable....In addition to this, the Parliament has an office...to be at once the nation's Committee of Grievances, and its Congress of Opinions.” (John Stuart Mill)

Article 44 enunciated the legislative authority which shall be vested in a Parliament, which shall consist of the YDPA and the Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat)

Legislatures adopt policies and make laws through the process of deliberation

The Judiciary A system of courts of law for the administration of

justice The Malaysian Judiciary is headed by the Chief

Justice (formerly called the Lord President). The President heads the Court of Appeal whilst two Chief Judges head the High Courts in Malaya and Sabah and Sarawak. They also sit in the Federal Court, the apex court in Malaysia, together currently with two other Federal Court judges. The President of the Court of Appeal and the Chief Judges of the High Courts shall be responsible to the Chief Justice.

Hierarchy of Courts in Malaysia

High Court

Sessions Court

Magistrate Court

Hierarchy of Courts in Malaysia

The Federal CourtThe highest court and the final appellate court in Malaysia.

 

The Court of AppealThe Court of Appeal hears appeals from the High Court relating to both civil and criminal matters.

The High Court

CIVIL JURISDICTION

The High Court has jurisdiction to try all civil matters but generally confines itself to matters on which the Magistrates and Sessions Courts have no jurisdiction. These include matters relating to divorce and matrimonial cases, appointment of guardians of infants, the granting of probate of wills and testaments and letters of administration of the estate of deceased persons, bankruptcy and other civil claims where the amount in dispute exceeds RM1,000,000.

The High Court

CRIMINAL JURISDICTION

The High Court may hear all matters but generally confines itself to offences on which the Magistrates and Sessions Courts have no jurisdiction, for instance, offences which carry the death penalty.

APPELLATE JURISDICTION

The High Court may hear appeals from the Magistrates and Sessions Courts in both civil and criminal matters.

Amount in dispute in any civil matters must exceed RM10,000 except where it involves a question of law.

(d) The Sessions Court

CIVIL JURISDICTION

A Sessions Court may hear any civil matter involving motor vehicle accidents, disputes between landlord and tenant, and distress actions. The Sessions Court may also hear other matters where the amount in dispute does not exceed RM1,000,000.

CRIMINAL JURISDICTION 

A Sessions Court has jurisdiction to try all criminal offences EXCEPT those punishable by death.

Written Law

The Federal Constitution

State Constitution

Legislation

• Legislation are laws enacted by Parliament (federal level) and State Assemblies (State Level)

• Law that are enacted by Parliament after 1946 but before Malaysia’s Independence in 1957 are called Ordinances.

• Laws that are enacted after 1957 are called Acts.• Laws made by the State Legislative Assemblies (except in

Sarawak) are called Enactments. Whereas, the laws in Sarawak are called Ordinances.

• Parliament and the State Legislatures are not supreme. They have to enact laws subject to the provisions set out in the Federal and State Constitutions.

• The subject–matter for legislation is divided between the Federal and State Governments.

• E.g. of legislation-Statutes or Act of Parliament, Ordinance and Enactments

Subsidiary Legislation

• The Interpretation Act 1967 defines Subsidiary Legislation 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”.

• Subsidiary Legislation are laws made by person or bodies under powers conferred on them by Acts of Parliament or State Assemblies.

• Legislature lays down the basic and main laws, leaving the details to persons or bodies to whom they delegate their legislative powers. Such person or bodies include the Yang di-Pertuan Agong, Minister and local authorities.

• E.g. of Subsidiary Legislation-Rules and Regulations, By-laws.

UNWRITTEN LAW Unwritten law is a part of Malaysian law which is

no written, i.e law which is not enacted by Parliament or the State Assemblies. It is the law which is not found in the Federal and State Constitutions.

i.e : customary law & adat

English Law

• English common law and rules of equity form part of the law of Malaysia.• Section 3(1)(a)of the Civil Law Act 1956 which is applicable to Peninsular Malaysia mentions

the application of the “the common law of England and the rules of equity” as administered in England on 7 April 1956.

• Whereas in Section 3(1)(b) and (c) of the same act which is applicable to Sabah and Sarawak allows the application of the common law of England and the rules of equity together with statutes of general application, as administered or in force in England on 1 December 1951 and 12 December 1949 respectively.

• The application of the law of England throughout Malaysia is two(2) Limitations:- (NEXT SLIDE)

Limitations law of England

It is applied only in the absence of local statutes on the particular

subjects. Local law takes precedence over English law as the latter is meant

to fill the gaps (lacuna) in the legal system in Malaysia.

Only the part that is suited to local circumstances will be applied. The provision to section 3(1) of the Civil

Law Act 1956 is the authority for this. It states that ‘the said common law,

rules of equity and statutes of general application shall be applied so far only as the circumstances of the State of

Malaysia and their respective inhabitants permit and subject to

such qualifications as local circumstances render necessary’. This proviso is necessary, as the population in Malaysia comprises diverse races practicing a variety of customs and religions, most of which are totally different from

those of the English society.

Judicial Decisions • Malaysian law can also be found in the judicial

decisions of the High Courts, Supreme Court and then the Federal Court and the advice of the Judicial Committee of the Privy Council.

• These courts make their decisions systematically by following the ‘doctrine of binding judicial precedent’.

• Judicial Precedent-When deciding cases, judge follow certain accepted principles commonly known as precedents. Precedents are decisions made by judges previously in similar situation.

• If the judge applies an existing rule of law without extending it, his decision is called a declaratory precedent. However, if the case before a judge is without precedent, the decision made by him is called an original precedent. In this manner, judges are constantly contributing to the development of unwritten law in Malaysia.

• A decision of Superior Courts (e.g. the Supreme Court) binds the lower courts (e.g. the High Courts, Sessions Courts, and Magistrates’ Courts).

• Therefore, binding precedents would depend on a court’s position in the hierarchy of the courts.

• Persuasive precedents are those, which are not binding authorities, unlike binding precedents, which are binding until they are reversed on appeal or overruled.

Advantage of Judicial

Precedent•It leads to an element of certainty in the law.•The law is able to grow as the needs of society alter.•The law is flexible in that new rules arise out concrete facts of situations.

Disadvantage of Judicial

Precedent•Due to the hierarchy of binding precedents being established, the law becomes rigid.•To prevent rigidity, courts tend to be keen to distinguish cases on the facts.•The development of the law through new precedents may be said to be slow and irregular.

Custom• Customs of the local inhabitants in Malaysia are also a source of law.

• Customs relating to family law, i.e. marriage. Divorce and inheritance, are given legal force by the courts in Malaysia.

• ‘Adat’ applies to Malays; prior to the enforcement of the Law Reform (Marriage and Divorce) Act 1976, Hindu and Chinese customary law applied to Hindus and Chinese respectively. In Sabah and Sarawak, native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.