TOPIC 1

MALAYSIAN LEGAL SYSTEM Law 416 (Business Law)

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Malaysian Legal System

(1) SOURCES OF LAW IN MALAYSIA

(2) (3)

1.1 1.2 1.3 1.4 1.5 1.6 1.7

Federal and State constitution Federal and State legislation Subsidiary legislation English Common law and equity Customs Judicial precedent Islamic law law

LEGISLATIVE PROCESS IN MALAYSIA ADMINISTRATION OF JUSTICE

3.1 3.2

Hierarchy of the courts Jurisdiction of the Courts

1.

Sources of Malaysian Law

LEGAL SOURCES OF MALAYSIAN LAW

WRITTEN LAW
FEDERAL CONSTITUTION

UNWRITTEN LAW
ENGLISH LAW

SHARIAH LAW
Common Law Equity

STATE CONSTITUTION

LEGISLATION
SUBSIDIARY LEGISLATION

CUSTOMS (ADAT) JUDICIAL PRECEDENT

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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 Constitution The State Constitution Legislation Subsidiary 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 Constitution

There 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 Malaysias 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
Enacts law at Federal level Within limits prescribed by Federal Constitution

STATES LEGISLATIVE ASSEMBLIES

Enacts law at State level Within limits prescribed by State Constitution

Law enacted before 31.08.1957 are called Ordinance Law enacted after 31.08.1957 are called Acts Parliament can enact laws in matters listed in list I of the Nine Schedule

Law enacted by State Assemblies are called Enactment except Sarawak laws are called Ordinance State Legislative Assembly can enact law in matters listed in List II of the Nine Schedule
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LEGISLATIVE PROCESS IN MALAYSIA (How bill becomes law?)

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LEGISLATIVE PROCESS IN MALAYSIA

FIRST 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

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.

Members debate the Bill. If accepted, the Bill is passed on for 2 consideration by a committee of the house.

OTHER HOUSES ROYAL 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.

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

THIRD READING

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Debate takes place and amendments may be put to a note. The House then either passes or defeats the Bill. 11

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) (b) Common Law 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

ADAT TEMENGGUNG

CHINESE CUSTOMARY LAW

INDIAN CUSTOMARY LAW

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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. COAs 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 COURT
Federal court
SPECIAL COURT

SUPERIOR COURTS

Court of Appeal

High Court (West Malaysia) Shariah Court Sessions Court Magistrates Court for Children

High Court (Sabah & Sarawak)

Shariah Court Native Court

Sessions Court

SUBORDINATE COURTS

Magistrates court

Magistrates Court

Magistrates Court for Children

Penghulu 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 mid1994 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 Penghulus 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. Penghulus 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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Penghulus Court
To try civil disputes where the subjectmatter does not exceed RM50 in value and in criminal cases, to impose a fine not exceeding RM25.

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