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MALAYSIAN LEGAL MALAYSIAN LEGAL SYSTEM SYSTEM TOPIC 1 TOPIC 1

Topic 1-Malaysian Legal System 2011

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Page 1: Topic 1-Malaysian Legal System 2011

MALAYSIAN LEGAL MALAYSIAN LEGAL SYSTEMSYSTEM

TOPIC 1TOPIC 1

Page 2: Topic 1-Malaysian Legal System 2011

CLASSIFICATION OF LAWCLASSIFICATION OF LAW

• Law Law

Public Law (Indiv & State)

Constitutional Law(Rts of Indiv in the State)

Criminal law

(Offences agst the State)

Private law

( Individuals inter se)

CONTRACTTORT

TRUST

INTERNATIONAL LAW

Public International Law

Private International Law

Page 3: Topic 1-Malaysian Legal System 2011

DIVISIONS OF LAW DIVISIONS OF LAW

3 divisions of law 3 divisions of law i.e. i.e. criminal and civil law; national and criminal and civil law; national and international law; public and private law.international law; public and private law.

Criminal law : Crimes where the offences are Criminal law : Crimes where the offences are against the State against the State

• Elements : Actus Reus ( a wrongful act) and Mens rea Elements : Actus Reus ( a wrongful act) and Mens rea ( a guilty mind. Burden of Proof is beyond reasonable ( a guilty mind. Burden of Proof is beyond reasonable doubt.doubt.

Page 4: Topic 1-Malaysian Legal System 2011

DIVISIONS OF LAWDIVISIONS OF LAW

Civil Law : Not by the State .The Legal action is Civil Law : Not by the State .The Legal action is taken by an individual (plaintiff) who suffered taken by an individual (plaintiff) who suffered loss or harm due to the acts of the defendant.loss or harm due to the acts of the defendant.

• Burden of Proof -Balance of probability not Burden of Proof -Balance of probability not beyond reasonable doubt. Onus of Proof is on beyond reasonable doubt. Onus of Proof is on person who so alleges.person who so alleges.

o Q: Which division does law of contract falls ?Q: Which division does law of contract falls ?

Page 5: Topic 1-Malaysian Legal System 2011

DIVISIONS OF LAWDIVISIONS OF LAW National law - internal legal rules of a country.National law - internal legal rules of a country. International law - laws regulating the external relations International law - laws regulating the external relations

of States with one another. of States with one another. Pedra Branca/Pulau Batu Puteh Pedra Branca/Pulau Batu Puteh between Singapore and Malaysia on 23/5/2008.between Singapore and Malaysia on 23/5/2008.

Public law – Public law – regulates relationshipregulates relationship between citizen and between citizen and the State , and may further divided according to the the State , and may further divided according to the areas of law dealing with different types of matters areas of law dealing with different types of matters affecting the citizen-State relationship affecting the citizen-State relationship e.g. e.g. constitutional constitutional law , administrative law and criminal law.law , administrative law and criminal law.

Private law – regulates relationship between citizens and Private law – regulates relationship between citizens and another and may be further divided according to the another and may be further divided according to the ways it ways it regulates these relationshipregulates these relationship law law

Page 6: Topic 1-Malaysian Legal System 2011

SOURCES OF LAWSOURCES OF LAW

Federal Constitution, State ConstitutionFederal Constitution, State Constitution Legislation, Subordinate Legislations.Legislation, Subordinate Legislations.

Enacted by Parliament or the State Assemblies Enacted by Parliament or the State Assemblies and found in the written Federal and State and found in the written Federal and State Constitution Constitution After 1947 Before 1957 – OrdinancesAfter 1947 Before 1957 – OrdinancesAfter 1957 – ActsAfter 1957 – Acts

By State Legislative Assemblies (except By State Legislative Assemblies (except Sarawak) –Enactments .Sarawak - OrdinancesSarawak) –Enactments .Sarawak - Ordinances

Page 7: Topic 1-Malaysian Legal System 2011

SOURCES OF LAWSOURCES OF LAW

English lawEnglish law Malaysian Case lawMalaysian Case law CustomCustom Native Law Native Law Islamic LawIslamic Law

Page 8: Topic 1-Malaysian Legal System 2011

FEDERAL CONSTITUTIONFEDERAL CONSTITUTION

Federal Constitution Federal Constitution • Art 4(1) Federal Constitution - It is the supreme law of the country and Art 4(1) Federal Constitution - It is the supreme law of the country and

any law that is inconsistent with the constitution is, to the extent of the any law that is inconsistent with the constitution is, to the extent of the inconsistency, void .inconsistency, void .

• Constitution sovereigntyConstitution sovereignty

• Laws enacted by Parliament and State Assemblies should not offend the Laws enacted by Parliament and State Assemblies should not offend the constitution – their powers are limited by the constitution.constitution – their powers are limited by the constitution.

Repco Holdings Bhd Repco Holdings Bhd v v PP PP [1997] 3 MLJ 681 [1997] 3 MLJ 681 per per Gopal Sri Ram Gopal Sri Ram JCA.JCA.

In countries like the UK and New Zealand, parliament is the supreme law In countries like the UK and New Zealand, parliament is the supreme law making body. It has unlimited powers to make, amend and repeal any law making body. It has unlimited powers to make, amend and repeal any law it wishes – it wishes – parliamentary sovereigntyparliamentary sovereignty

Page 9: Topic 1-Malaysian Legal System 2011

State ConstitutionsState Constitutions

There are 13 state constitutions which There are 13 state constitutions which govern the respective states. govern the respective states. Each state has a single chamber.Each state has a single chamber.Mainly looks at succession of rulers etcMainly looks at succession of rulers etc

Page 10: Topic 1-Malaysian Legal System 2011

LEGISLATION AND LEGISLATION AND ENACTMENTSENACTMENTS

Legislation enacted by Parliament- Art.73.Legislation enacted by Parliament- Art.73. They are laws made by Parliament that extend throughout the They are laws made by Parliament that extend throughout the

country and can have extra territorial jurisdiction – country and can have extra territorial jurisdiction – Articles Articles 73-7773-77e.g. Contracts Act 1950; Partnership Act 1961. e.g. Contracts Act 1950; Partnership Act 1961.

• Ninth Schedule of the Federal Constitution provides the Ninth Schedule of the Federal Constitution provides the Legislative Lists - List 1/Federal List; List II/State List; List Legislative Lists - List 1/Federal List; List II/State List; List III or Concurrent List – III or Concurrent List – Art. 74,77Art. 74,77

• Laws made by the State Assembly/Legislature applies only to Laws made by the State Assembly/Legislature applies only to their respective states – State List/ List II.their respective states – State List/ List II.

• Ordinances are laws made by the King during a proclamation Ordinances are laws made by the King during a proclamation of an Emergency when Parliament is not in sessionof an Emergency when Parliament is not in session

Page 11: Topic 1-Malaysian Legal System 2011

DELEGATED LEGISLATIONDELEGATED LEGISLATION Subordinate /Delegated :LegislationSubordinate /Delegated :Legislation • These are rules & regulations enacted by an authority e.g. Minister or body These are rules & regulations enacted by an authority e.g. Minister or body

that have been conferred or delegated the power by the parent or enabling that have been conferred or delegated the power by the parent or enabling statute.statute.

• There are federal subsidiary legislation and state subsidiary legislation.There are federal subsidiary legislation and state subsidiary legislation. Proclamation/rules/regulations/bye-law/order/statutory instrument/ Proclamation/rules/regulations/bye-law/order/statutory instrument/

made under any Ordinance,Enactment or other lawful authority and made under any Ordinance,Enactment or other lawful authority and having legislative effecthaving legislative effect

Eg ;King/Minister/government department/local authorities/public Eg ;King/Minister/government department/local authorities/public bodies/professional bodies.bodies/professional bodies.

Must be within the ambit of enabling/parent legislation.Must be within the ambit of enabling/parent legislation. If not it is If not it is ultra vires i.e. ultra vires i.e. null and void except during emergencynull and void except during emergency

Page 12: Topic 1-Malaysian Legal System 2011

ENGLISH LAWENGLISH LAW

Common law and rules of equity.Common law and rules of equity. Only applicable if:Only applicable if: S.3 & 5 Civil Law Act 1956S.3 & 5 Civil Law Act 1956 Lacunae Lacunae in Malaysian Law; andin Malaysian Law; and Suitable to local circumstancesSuitable to local circumstances S5 Civil Law Act 1956S5 Civil Law Act 1956

English Commercial Law still applicable in absence of English Commercial Law still applicable in absence of conflicting provisions in local statutes/local legislation. conflicting provisions in local statutes/local legislation. English law has also become part of Malaysian law through English law has also become part of Malaysian law through the Civil Law Act 1956 (amended 1972).the Civil Law Act 1956 (amended 1972).

Page 13: Topic 1-Malaysian Legal System 2011

JUDICIAL DECISIONSJUDICIAL DECISIONS

Common law or ‘judge-made’ lawCommon law or ‘judge-made’ law• They are laws made by judges sitting in the superior courts.They are laws made by judges sitting in the superior courts.• It’s existence is due to the fact that either Parliament has not created or It’s existence is due to the fact that either Parliament has not created or

provided laws for every kind of situation or where they have been provided laws for every kind of situation or where they have been provided, the laws are incomplete. There may exist ‘lacunas’ in the law.provided, the laws are incomplete. There may exist ‘lacunas’ in the law.

• In the process of interpreting and applying the laws, judges inevitably lay In the process of interpreting and applying the laws, judges inevitably lay down legal principles that become law through the doctrine of binding down legal principles that become law through the doctrine of binding precedents.precedents.

• e.g. law of negligence –e.g. law of negligence – Donoghue v. StevensonDonoghue v. Stevenson [1932] – the case of the [1932] – the case of the snail in the ginger beer bottle. Before this case the common law did not snail in the ginger beer bottle. Before this case the common law did not recognise that the manufacturer of a product owed a duty of care to the recognise that the manufacturer of a product owed a duty of care to the ultimate consumer. But the House of Lords altered that position and ultimate consumer. But the House of Lords altered that position and established a new principle of law.established a new principle of law.

Page 14: Topic 1-Malaysian Legal System 2011

HIERARCHY OF THE COURTS HIERARCHY OF THE COURTS Courts:Courts:

Federal Court

Court of Appeal

High Court of Malaya

High court of Borneo

Sessions Court Sessions Court

Magistrate courtMagistrate court

Superior courts

Lower/ subordinate Courts

Page 15: Topic 1-Malaysian Legal System 2011

COURT STRUCTURECOURT STRUCTURE

Divided into superior, subordinate courts and Divided into superior, subordinate courts and specialised courts.specialised courts.

Subordinate Courts – Sessions Court and Subordinate Courts – Sessions Court and Magistrates Court, Penghulu’s Court (W.M’sia) Magistrates Court, Penghulu’s Court (W.M’sia) and Natives Court (E.M’sia)and Natives Court (E.M’sia)

Superior Courts – High Court, Court of Appeal Superior Courts – High Court, Court of Appeal and Federal Court. and Federal Court.

Specialised courts – Juveniles Court, Labour Specialised courts – Juveniles Court, Labour Court, Industrial Court and Martial Court.Court, Industrial Court and Martial Court.

Page 16: Topic 1-Malaysian Legal System 2011

Courts in MalaysiaCourts in Malaysia

• The Federal Court, Court of Appeal & High Court are superior The Federal Court, Court of Appeal & High Court are superior courts.courts.

• The Federal Court & Court of Appeal are appellate courts.The Federal Court & Court of Appeal are appellate courts.

• The High Court has The High Court has original jurisdictionoriginal jurisdiction ( a trial court/court of ( a trial court/court of first instance for certain matters), first instance for certain matters), appellate jurisdictionappellate jurisdiction (hear (hear appeals coming from the Sessions & Magistrates’ Courts) and appeals coming from the Sessions & Magistrates’ Courts) and supervisory jurisdiction.supervisory jurisdiction.

• The Sessions Court and Magistrates’ Courts are subordinate or The Sessions Court and Magistrates’ Courts are subordinate or inferior courts.inferior courts.

Page 17: Topic 1-Malaysian Legal System 2011

JUDICIAL PRECEDENTJUDICIAL PRECEDENT

• A previous decision of a superior court in a case A previous decision of a superior court in a case where the issues are similar constitutes a where the issues are similar constitutes a precedentprecedent that must be followed by a court lower in the that must be followed by a court lower in the hierarchy.hierarchy.

• They are authoritative & binding on subsequent cases They are authoritative & binding on subsequent cases – known as the – known as the doctrine of judicial precedentsdoctrine of judicial precedents oror starstaréé decisis decisis (let the decision stand).(let the decision stand).

• Distinguish between: the Distinguish between: the ratio decidendiratio decidendi – the legal – the legal principle/basis upon which the case was decided and principle/basis upon which the case was decided and obiter dictaobiter dicta – remarks made in passing that has no – remarks made in passing that has no binding effect.binding effect.

• Both form part of the judgement of the court.Both form part of the judgement of the court.

Page 18: Topic 1-Malaysian Legal System 2011

JUDICIAL PRECEDENTSJUDICIAL PRECEDENTS

Subordinate courts are bound by precedents laid Subordinate courts are bound by precedents laid down by the superior courts but their own decisions down by the superior courts but their own decisions are not binding on any courtare not binding on any court

A High Court decision is binding on all subordinate A High Court decision is binding on all subordinate courts but the High Court judge is not bound to follow courts but the High Court judge is not bound to follow the decision of another.the decision of another.

Court of Appeal bound by its own decisions and Court of Appeal bound by its own decisions and bound to decide which of two conflicting decisions of bound to decide which of two conflicting decisions of its own . Not bound to follow if decision made is per its own . Not bound to follow if decision made is per incuriam.incuriam.

Advantages and DisadvantagesAdvantages and Disadvantages

Page 19: Topic 1-Malaysian Legal System 2011

ISLAMIC LAWISLAMIC LAW

Applicable only to Muslims and administered in the SyariahApplicable only to Muslims and administered in the Syariah Courts which are religious courts.Courts which are religious courts.

• Islamic law is state law (State List) and Syariah courts are Islamic law is state law (State List) and Syariah courts are state courts unlike civil law which is federal law (Federal state courts unlike civil law which is federal law (Federal List) and is administered by the civil courts which are federal List) and is administered by the civil courts which are federal courts. (Ninth Schedule, Federal Constitution).courts. (Ninth Schedule, Federal Constitution).

• Civil courts shall have no jurisdiction in respect of any matter Civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts – Clause 1A of within the jurisdiction of the Syariah courts – Clause 1A of Art. 121 of the Federal Constitution. Art. 121 of the Federal Constitution.

Page 20: Topic 1-Malaysian Legal System 2011

NATIVE LAWNATIVE LAW

• Applicable only to the natives/indigenous Applicable only to the natives/indigenous peoples of Sabah and Sarawak in respect of peoples of Sabah and Sarawak in respect of their native law and custom, including the their native law and custom, including the personal law relating to religion and personal law relating to religion and matrimonial matters.matrimonial matters.

• Applied by the Native Courts in these 2 states.Applied by the Native Courts in these 2 states.

Page 21: Topic 1-Malaysian Legal System 2011

SOURCES OF THE LAW SOURCES OF THE LAW SummarySummary

Sources of Law

Federal Constitution

State Constitution

Legislation

Federal Laws

Enactments

Ordinances

Subsidiary Legislation

English Common law

Customary Law

Judicial Precedent

Native Law

Islamic Law

Page 22: Topic 1-Malaysian Legal System 2011

CONCLUSIONCONCLUSION Law and legal system is akin to UK. Adversarial system . European Law and legal system is akin to UK. Adversarial system . European

Continental Countries , Interlocutorial System Continental Countries , Interlocutorial System Being a commonwealth country, our laws tend to be similar to other Being a commonwealth country, our laws tend to be similar to other

countries within the commonwealth whether western or eastern but countries within the commonwealth whether western or eastern but we have eventually evolved our Malaysia common law itself,and we have eventually evolved our Malaysia common law itself,and legislation is accordingly to Malaysia circumstances and needs legislation is accordingly to Malaysia circumstances and needs although adopt approach of other countries . although adopt approach of other countries .

Gradual emergence of Islamic thinking and principles in the Gradual emergence of Islamic thinking and principles in the Malaysian laws.Malaysian laws.

Regionalisation/globalisation/internationalisation and pressures from Regionalisation/globalisation/internationalisation and pressures from World Bodies have begun to have impact on the Malaysian laws to World Bodies have begun to have impact on the Malaysian laws to succeed to the assemblage of developed nationssucceed to the assemblage of developed nations..