NURAHMAD FAISYAL B. HJ JALIKNURAHMAD FAISYAL B. HJ JALIKLL.B (Hons) UiTM LL.B (Hons) UiTM College MCS Banting, MalaysiaCollege MCS Banting, Malaysia

Introduction to Malaysian Legal

System

Introduction to Law Introduction to Law Explanation and Definition of ‘Law’ Law in Relation to Justice Law and Ethics Rule of Law Law, the State and the Constitution

- Law in Malaysia- Concept of a ‘State’

Classification of Law- Public Law- International Law- Private Law

Sources Of Malaysian LawSources Of Malaysian LawMeaning of ‘Sources’Main Sources of Malaysian Law- Written Law- Unwritten Law- Islamic Law

Sources of Malaysian LawSources of Malaysian Law

Written LawWritten Law comprises of:

1. The Federal and State 2. Legislation enacted by Parliament and the

State Assemblies3. Subsidiary legislation made by persons or

bodies under powers conferred on them also referred to as statute law law made by Parliament and any

subordinate bodies to whom Parliament has delegated power to legislate

Continue :Continue : where statute law and common

law conflict, statute law will prevail to the extent of the conflict

when hearing cases, the courts are not just performing an act of fact-finding; they also interpret statutes

Continue :Continue : in interpreting statutes, courts

are guided by:a) Interpretation Actsb) Extrinsic materialsc) Common law rules of statutory

interpretationd) Precedent

courts interpret legislation to reflect the apparent purpose or intention of the legislators (a ‘purposive’ construction)

Continue :Continue : if the words of the Act are clear, effect

must be given to them notwithstanding that the end result may be absurd

courts use extrinsic (external) material in the interpretation of statutes: – some statutes set out their own

definition or interpretation– common law rules of statutory

interpretation and precedent

Continue :Continue : 3 main approaches to interpretation

used by the courts:1. Literal or plain meaning approach2. Golden rule approach3. Mischief approach

Literal ApproachLiteral Approach courts assume that the meaning

and intention of the legislature is clear in the statute to be interpreted

disadvantage – words can often have more than one meaning, so the courts have to decide which approach should apply

the whole Act is read and understood before a detailed

examination of a section, or of particular words in a section, is begun

Golden Rule ApproachGolden Rule Approach takes the plain meaning of the

words used in the statute and adheres to that meaning

only a gloss of the literal or plain meaning rule

where the words in an Act are at variance with the legislators’ intention or can lead to an absurdity, injustice or repugnancy, the court will attempt to choose a meaning that will avoid such a result

Mischief ApproachMischief Approach where the literal interpretation is

not possible, courts will:1. Look at the law before the statute was

passed2. Look to the overall intention of the

legislation as discovered from reading the Act as a whole

3. Ask: What mischief is it that this statute is intended to remedy? What was its social purpose?

Written Law in MalaysiaWritten Law in Malaysia written law in Malaysia:

1.The Federal Constitution2.State Constitutions3.Legislation4.Subsidiary legislation

Federal ConstitutionFederal Constitutionsupreme law of the countryapplies to all States in the

Federationlaying down the powers of the

Federal and State Governmentsenshrines the basic or

fundamental rights of the individual

State ConstitutionState Constitution each State possesses its own

constitution contain provisions which are

enumerated in the Eighth Schedule

Federal Constitution some of these provisions include

matters concerning the Ruler

State ConstitutionState Constitution the Executive Council, the

Legislature, the Legislative Assembly, financial provisions, State employees, and amendment to the Constitution

if such essential provisions are missing, or if any provision is inconsistent with them, Parliament may make provision to give effect to them or to remove any inconsistencies, as the case may be – Article 71, Federal Constitution

LegislationLegislation law enacted by a body constituted for this purpose legislated by Parliament at federal level and by the various State Legislative Assemblies at state level laws that are enacted by Parliament after 1946 but before Malaysia’s Independence in 1957 – Ordinances those made after 1957 – Acts laws made by the State Legislative Assemblies (except in Sarawak) – Enactments laws in Sarawak – Ordinances

Subsidiary LegislationSubsidiary Legislation Interpretation Act 1967: ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’ deals with the details about which the legislature has neither the time nor the technical knowledge to enact if made in contravention of either a parent Act or the Constitution is void – an exception to this rule is the proclamation of emergency under Art 150 of the Federal Constitution

Unwritten LawUnwritten Law portion of Malaysian law which is

not written comprises: 1. English law 2. Judicial decisions 3. Customs

Judicial DecisionJudicial Decision Malaysian law can also be found in

the judicial decisions of the High Court, Court of Appeal and the Federal Court, the then Supreme Court and the Judicial Committee of the Privy Council

decisions of these courts were made and still are being made by the ‘doctrine of binding precedent’

PrecedentPrecedent is basically a judgment or decision of a

court of law cited as an authority for the legal principle embodied in its decision

may comprise: – res judicata – final order of the court binding

the immediate parties to the decision– ratio decidendi – the reason for the decision– obiter dictum (sayings by the way) – no

binding power, although it can exercise an extremely strong influence in a lower court, and even in a court of equivalent standing, depending on the court and the judge

PrecedentPrecedent following a precedent’ means that a

question should be resolved in a certain way today because a similar question has been so decided before

this process of following an established procedure is called stare decisis which literally means ‘to stand by a decision’

advantages of precedents:– promote consistency, coherence and certainty– promote efficiency and justice, ensuring

equality and fairness

PrecedentPrecedentdisadvantages of precedents:

◦ certain precedent may not be relevant in today’s circumstances but the judge may have to nevertheless follow it

◦ may also be slow in responding to community changes and it is cumbersome to change them as they may require an Act of Parliament

in applying binding precedents, Malaysian law can be found in the judicial decisions of the High Court, Court of Appeal and the Federal Court and the then Supreme Court, Federal Court and the Judicial Committee of the Privy Council

PrecedentPrecedent decisions of these courts were made, and are still being made, systematically by the use of what is called the ‘doctrine of

binding judicial precedent’ in the case of a binding precedent (the

ratio decidendi of an earlier case decision), each court is bound by the decisions of courts of the same level or higher than it, in the same hierarchy of courts

if a judge applies an existing rule of law without extending it, his decision may be called a declaratory precedent if the case before a judge is without precedent, then the decision made by him may be called an original precedent

Judicial SystemJudicial System

Federal CourtFederal CourtThe highest court in our countryin its stead, the Supreme Court

was set up and was the highest court until 23 June 1994

now it is the highest courtappeals from the High Court can

be made to the Court of Appealthe Supreme Court has, therefore,

been abolished since 24 June 1994

High CourtHigh Courtdecision is binding on all subordinate

courts but the High Court judge is not bound to follow the decision of another

however, he may do so as a matter of ‘judicial comity’

Sessions Courts and the Magistrates’ Courts

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

Subordinates CourtSubordinates CourtSubordinates Courts sometimes

known as Inferior Courts or Lower Courts consists of the Sessions Courts, The Magistrates Courts and the Penghulu’s Court. However, the Penghulu’s Court was abolished in 2013.

In addition, the Juvenile Court, Syariah Court and Native Court are also recognized as subordinate courts.

CustomCustom generally, 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 the Hindus and Chinese respectively

in Sabah and Sarawak, native customary laws apply in land dealings over native customary lands and family matters

Islamic LawIslamic Law each State has the power to administer Islamic

Law the head of the Muslim religion in a state (except

for Penang,Malacca, Sabah, Sarawak and the Federal Territories) is the Sultan

in Penang, Malacca, Sabah, Sarawak and the Federal Territories, the Yang di-Pertua Negeri is the head

the courts enforcing Islamic law – the Syariah Courts

Islamic law applies to Muslims only in businesses, esp. areas of banking and finance,

Islamic principles are increasingly relevant in lending and investments