MALAYSIAN LEGAL SYSTEM

Prepared by:NURUL NASIHIN ARIFFIN

KPMBP

Learning outcome

• Students should be able to:Be familiar with the term law, sources of Malaysian Law, the Malaysian Government

system and Malaysian Judicial system.

INTRODUCTION• What is law?

- A body of rule which is enforceable by the State.

• Law in relation to justice- the aim is to attain justice in society.- justice? It is an abstract idea of right and wrong , fairness and equality. - therefore, the aim of a given law is to encourage the doing of what is right or just in a particular set of circumstances.

Cont…• Law, the State and Constitution

- Malaysia, which consists of Peninsular Malaysia, Sabah and Sarawak is one political unit, but it is not governed by the same set of laws. - There are attempts to achieve uniformity.- However, there are links that unite the two parts of Malaysia, the Parliament and the Federal Court. - The Parliament can and does legislate for the whole country.- The FC acts as a final court of appeal for the whole country.

Cont…- Malaysia is a federation of 13 states and 3 Federal Territories. And it has a Federal Constitution and a 13

State Constitutions. - Federal Constitution is the Supreme Law of the land.

State Constitution is law made by State to govern her own state. Any law made by Parliament or by

State Constitution that inconsistent with Federal Constitution is VOID- An article 74 of the Federal Constitution provides that

Parliament may make laws with respect to any of the matters enumerated in the Federal Lists, State

Legislature may make laws in respect to any of the matters enumerated in State List.

Cont…- Both Parliament and State Assembly may also make laws with respect to any matters enumerated in the Concurrent List. But, if there inconsistency, laws made by Parliament shall prevail.

• Classification of Law1) Public law

- PL is basically the law which governs the relationship between individuals and the State.

- PL further divided into constitutional and criminal law- Constitutional law lays down the rights of individuals in the

state.- Criminal law codifies the various offences committed by

individuals against the State.

Cont…

2) International law- law which regulates the relationship between one state and another.- Eg: Singapore & Malaysia ( Pulau Batu Puteh)- it may further be subdivided into 2 categories: public international law

private international law

Cont…

3) Private law- law between one individual and another- concerned with matters that affect the rights and duties of individuals amongst themselves.- Eg; contract, tort, trust etc

Malaysian Constitution & Sources of Law

• The word ‘sources’ has several meanings which include the following:1) historical sources – factors that have influenced the development of the law although they are not recognized as law.

( Eg: religious beliefs, local customs and opinion of jurists)2) Legal sources – legal rules that make up the law . Can be classified into written & unwritten

Cont…• Sources of law can be found from: statutes

law reportstext books

• Sources of law can be classified into:1) Written- is the most important source of law. - it refers to that portion of Malaysian Law which includes:

1. The Federal and State Constitution2. Legislation enacted by Parliament and State

Assemblies3. Subsidiary legislation

Cont…

2) Unwritten law- doesn’t mean that it is not written- what made it unwritten is that it is not made by the formal legislative bodies.- Sources of unwritten law are:

1. English law2. Case law3. Customs

Cont…

• Constitution- Federal Constutution is the supreme law of

the country. Any law passes after Independence Day with inconsistent with the Federal Constitution is void.

- Parliament exist under Constitution therefore all action must consistent with the Constitution. If inconsistent, it is void.

Cont…

• Legislation - Refers to law enacted by a body constituted

for this purpose.- Legislation is not only contains law but is law

itself.- Legislation made by parliament at the federal

level and by state legislative assemblies at state level

Cont…• Subsidiary legislation- In theory, power to rule in Malaysia is divided into :

Body of law

legislative executive judiciary- Power to make law is vested to the legislative body. - However, there are too little laws made by legislative body.- Part of the power is vested to the executive body.- Legislation made by the executive through delegation is

known as subsidiary legislation

Cont…

• English Law- EL is used as a source of law which was provided

in Sec 3 and sec 5 of Civil Law Act 1956- However; sec 3 is bound on two limitations:

1) it is applied only in the absence of local statutes on particular subjects

2) only part of the EL that is suited to local circumstances will be applied.

Cont…

• Doctrine of judicial precedent- meaning: every time the judge is to make a

decision in a trial, they are follow the previous decision made by the previous judge, where the fact in the previous case is the same as in the present case.

- If there is no precedent, the judge is bound to make decision as he think just.

Cont…• Doctrine of JP policies are:

1) decisions made by a court will bind decision made by courts which rank lower from her in hierarchy of courts2) decisions of a HC will not bind decisions of other HC but are to be respected3) decisions of subordinate courts will bind those particular courts only.

• Custom- The most common customs that apply are ‘adat perpatih’ and

‘adat temenggung’. - There is also customs for Chinese and Indian

The Judicial System• FEDERAL COURT- It ranks at the highest in hierarchy of courts in Malaysia. - Jurisdiction to hear: original

appellate on both constitution questionadvisory

Criminal appeals only can be made by the convict as against sentence only, where as the prosecutor can appeals as against any decision including acquittal

For civil appeals, is disallowed if amount in demand is less than RM250,000(except with the HC & FC discretion?

Cont…

• COURT OF APPEAL- COA has jurisdiction to hear and determine

any appeal against any HC decision on criminal matters.

- Civil appeals which can be hear only where the amount of claim is at least RM250,000.

Cont…• HIGH COURT- Consist of two chief judges, one in peninsular Malaysia and one in Sabah and

Sarawak.- Jurisdiction to hear: original

appellatesupervisory

Jurisdiction to hear original jurisdiction is unlimited, but in practise HC odes not try a small criminal or civil cases.

HC jurisdiction is to try cases under her province onlyAlso has jurisdiction to hear appeal from subordinate courts.However, the appeals of criminal disallowed if the amounts of penalty is not

more than RM25, for civil cases, appeals is not allowed if amount of claims is not less than RM10,000.

Cont…

• SESSION COURT- Has jurisdiction to hear any types of criminal

cases except those deals with death sentence.- Under civil jurisdiction, claims is not more than

RM250,000.- For complex matters, such as trust, termination

of contract, the cases will be heard in HC even the amount in demand is less than RM250,000.

Cont..

• MAGISTRATE COURT- Divided into 2:

1)1st class magistrate2)2nd class magistrate

- The 1st class magistrate court is for civil case where amount in claim is less RM25,000

- The 2nd class is to hear claims of less than RM3000

Cont..

• JUVENILE COURT- Specially for minor between 10- 18.- For murdered, the juvenile will be tried as an

adult.

thank you for your cooperation