Law & Its Basic Functions

Law & Its Basic Functions
GSM 5131
BUSINESS LAW & ETHICS
PUTRA BUSINESS SCHOOL
By: Sharifah Mazwin Syed Abu Bakar,
Advocate & Solicitor, High Court of Malaya
1
Content
What is Law?
Classification of Law
Sources of Law
Judicial System
Alternative Dispute Resolution
Law, Justice & Morality

2

What is Law?
3
What is Law?
A set of rules developed over a period of time
Recognised by a community as binding
Regulates interaction between people,
institutions and corporations
A system enforced by the State by way of
sanctions
What is a State? A collective almost entirely
built on the basis of a political unit
4
Classification of Laws
3 Main World Legal Systems:-
Civil Law codified
Common Law case law
Socialist Law public law
Also based on Religious or Belief System
Islamic Quran & Sunnah
Hindu Doctrine of proper behaviour
Talmudic summary of oral law over centuries of scholarly
effort by sages in Babylonia distinct from the Torah (written law)
Sino-Soviet Karl Marx eradication of personal rights,
absolute state right
Others?

5
Convergence of Civil & Common Law
Systems with Codified laws referring more to
caselaw
Systems with Caselaw codifying more laws
Common law system
Public law
Private law
International law
6
Public Law
Relationship between people & State
2 categories
Constitutional Law righs of citizens vs State powers
Criminal Law codifies offences by citizens based on actus reus (wrongful act) & mens
rea (unlawful intent)
Private Law
Relationship between private individuals eg Contract (set of promises between
parties), Trust (equitable obligation over property in favour of beneficiaries),
Tort (a civil wrong by way of breach of duty intentionally or negligently)
International Law
Relationship between states as recognised by it
Public International Law Customary rules, treaties & conventions that
prevails between States
Private International Law (conflicts of law) - Rules that guide a judge when
laws of more than 1 country affects a case

7
What is State of Malaysia
All Laws enforced by State
Malaysia - 13 states & 3 FT
Central Govt & State Govt
Consitutional monarchy based on UK Agong is
constitutional head of federation. Elected by conference of
rulers every 5 year rotation between the 9 rulers & 4
Governors (Yg Dipertua negeri)
Conference of Rulers meets every 4 years link between
state & federal so menteri besars always attend
Duties of CoR elect Agong & Deputy, discuss ntional
policy, consent of law, advice on apmts that consitutionally
require their consent


8
Malaysias State Structure
YDPA
Federal
Government
Dewan Rakyat Dewan Negara
State
Government
State
Legislative
Assembly
Sate Executive
Councillors
9
Sources of Law in Malaysia
Malaysian Law based on Common Law Principals
Where is it derived from?
Historical sources (religious belief, local custom, opinion of jurists)
Integration of Legal sources (rules & laws), Depository (statutes, reports,
reference texts), common law, Syariah law & customary law, Statute Law
Definition of Law in Malaysia:-
Art 160(2) Federal Constitution 1957
S.2(1)(43C) Interpretation and General Clauses Ordinance 1948
Written Law
Common Law (in so far as it is in operation in the Federation or part of
it)
Any custom or usage having the force of law in the Federation or part
of it
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Sources of Law
Written Federal & State Constitution, Acts, Subsidiary
Legislation (Rules & Regulations), confirms common law
Unwritten English Law (common law), caselaw (refce
also to commonwealth countries), customs accepted as
law
Islamic Law Finance & Banking (Central Bank Act,
Financial Services Act), Land (Stamp Act & State Land
Offices), Trade (Bursa), Insurance (no separate Takaful Act)
International Treaties & convention expectation of
conformity once ratified even without enabling Legislation
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Sources of Laws - Application
Written Law
Remain until repealed, broad terms, provide for subsidiary
legislation (rules & regs)
Subject to Interpretation by Interpretation Act, Extrinsic
materials (travail preparatoire) , definition in Act, common
law rules of Interpretation (Literal, Golden Rule, Mischief),
precedent, maxims to reflect purpose or intent of Act
May impute meaning or words into Act if feel Parliament
failed to deal with matter required to be dealt with to
achieve purpose of Act subject to satisfaction of test
Birmingham v Corrective Services Commission of New
South Wales [1998] 15 NSWLR 192
If words clear effect given even if end result absurd

12
Sources of Laws - Interpretation
Literal meaning Approach
Whole Act read, words read in context of whole Act,
not in isolation
Golden Rule Approach
Fischer v Bell [1961] QB 394 plain meaning of word
unless vary from intent of Act or lead to repugnance,
injustice or absurdity
Mischief Approach
Lee v Knapp [1967] 2 QB 442 where literal approach
not poss, look at law before Act, overall intention of
Act as a whole, any mischief remedied? Goes beyond
examples in Act (usually not in eg, not covered)

13
Sources of Laws - Interpretation
Legal Maxims aids to construction
noscitur a sociis association ie where word is
ambiguous, consider it with words which it is
associated to in the context
Prior v Sherwood [1906] 3 CLR 1054
Ejusdem generis same class ie the word is
limited to the same class to/type as the specific
words preceding it
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Sources of Law - Written
Written Constitution enshrines powers of Federal & State
Govts & rights of the people
Federal Constitution & State Constitution (in 8
th
Sched of FC)
Status - Art 4 Fed Con is supreme law of federation
Art 4(1)- FC supreme law of the land & laws after Merdeka
inconsistent with it is void
Art 162(6)- inconsistent laws pre merdeka, to be modified so as
to be inconsistent by ct or tribunal
s.73 of Malaysia Act 1963 (effected by Art 159A of FC) pre
Malaysia laws enacted by a state survive only in so far as that
state yardstick to measure validity of all other laws of land
15
Sources of Law Federal Constitution
Art.73 of FC confers legislative powers on Parliament & State
Legislative Assembly
Legislative & executive powers divided between Central &
State Govt via Arts 74 & 80 of Federal Constitution (FC)
Division of powers - 5 lists in 9
th
Sched of FC
Federal List (I)
State List (II)
Concurrent List (III)
Supplement to State List for Sabah & Sarawak
Concurrent List for Sbh & Swk
Supplement to Concurrent Lists for Sbh & Swk
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Sources of Law Legislation
Art 74 - Parliament enact legislation in Federal & Concurrent
List
Federal List - external affairs, defence, internal security, civil & criminal
law & procedure, admin of justice called Ordinances before and Acts
after 1957
State Legislative Assemblies legislate in State & Concurrent
Lists called Enactments. Sarawak called Ordinances
State List - Islamic law, land, agri, mining, local govt, state works &
water, state holidays, offences against state law (native law, ports &
harbours In supplementary state list for Sabah & Sarawak)
Concurrent List matters of common concern (social welfare,
town & country planning, pubic health, scholarships, drainage
& irrigation).
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Sources of Law -Legislation Process
(Enactment)
By virtue of Art 44 enactment carried out in Parliament
YDP Agong (YDPA), Dewan Rakyat (DR), Dewan Negara
(DN)
Bill must be passed by both DR & DN
Thereafter assented to by YDPA
Process:-
Consultation & Drafting by AGs Chambers with stakeholders
Parliamentary Stage debates & votes through readings in both
houses
Special cases Select Ad Hoc Committee to get public feedback
Royal Assent
Enforcement by Gazette in Warta Kerajaan

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If Parliamentary Acts inconsistent with Federal
Constitution can be challenged in court.
Thian vs Govt of Malaysia:
Suffian L.P. -The doctrine of supremacy of Parliament does not apply
in Malaysia. Here we have a written constitution. The power of
Parliament and of State Legislature in Malaysia is limited by the
Constitution and they cannot make any law they please
R Rethana v Govt of Malaysia & Anor [1998] 1 MLJ 133
S.31 & 42 of Socso found not contrary to right to sue under FC as it
was found to be fair & reasonable
Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681
Gopal Sri Ram JCA - Locus standi of prosecution officers under s.126(2)
of Securities Industries Act ad S.39(2) of the Securities Commission Act
ultra vires Art 145(3) of FC so void & unsconstitutional by virtue of Art
4(1). Inconsistent with FC
19
If Parliamentary Acts inconsistent with State Enactments for
matters within the purview of the State Law:-
Mamat Bin Daud v Govt of Malaysia [1988] 1 MLJ 119
S.298A Penal Code states an act is an offence if likely to prejudice
unity amongst Muslims. Facts:- unauthorised Khatib at Friday
prayer in Terengganu as required under State Enactment
Held:- pretend to be a public order law but should be under
purview of State therefore S.298A invalid, null & void and of no
effect. Parliament no power to legislate on this matter

Art 4(3) FC if ground is ultra vires powers, then challenge can
only be mounted, if Parliamentary Law, in Fedn v 1 or more State
proceedings; if State Law, in Fedn v that State proceedings
20
Art 4 (4) FC proceedings other than Art 4(3), need leave of
Federal Court to challenge
Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3
MLJ 23
Bakun Dam Project Objection by natives based on fact that an EQ
Order 1995 excluded requirement of an EIA Report in Sarawak. It
was argued by Govt that although production, supply & power is in
Concurrent List, the environment is sole purview of State in
question so EQA tho expressed to apply to whole of Malaysia, does
not apply to Sarawak . Gopal Sri Ram JCA Agreed. Also, to
challenge a law, proceedings must be pursuant to Art 4(4) read
together with Art 128 FC. i.e. if challenge is Parliament exceeded it
powers, then must be by way of leave of FC
21
Art 75 states Fed govt prevails if there is inconsistency between
Fed & State Laws State has power to enact laws which are in the
relevant List in the 9
th
Schedule & outside the purview of
Parliament
City Council of Georgetown v Govt of State of Penang [1967] 1 MLJ 169
(FC) - State law inconsistent with fed law
Excptn:-
Art 76 Parliament allowed to legislate in State List eg to
implement international agreements and promote uniformity of
law
Art 150 Parliament granted far-reaching powers in an emergency
Unequal sharing of power favour fed govt
Legislation becoming more important than case-law or precedent
22
Sources of Law - Subordinate
Legislation
S.3, Interpretation Act 1948 & 1967 (IA)
All proclamations, rules, regulations, orders, notifications, by-
laws or other instruments made under any Act, order, lawful
authority & have legislative effect
Parliamentary Acts provide powers and are drafted in broad terms
in order to carve out parameters of the subject matter in question
Details are delegated to the executive branch who create
subordinate legislation
However such legislation made without any consultation,
discussion, a sub-delegation, debate or vote
S.23(10 & 87(d) of IA void if inconsistent with the Principal Act or
State Enactment
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Sources of Law - Subordinate
Legislation

Remedy Judicial Review doctrine of ultra vires of
powers
Grounds for review
Substantive
Procedural

Other methods of Legislative Control
enabling statute requires legislation to be presented before
legislature for confirmation/information. Eg Trade Marks Act
and Trade Unions Act
Consultation enablings Act makes consultation compulsory
Publication - rare

24
Sources of Law Subordinate
Legislation
Art 150 exception to Conflict between Fed v State Laws
Eng Keock Cheng v Public Prosecutor [1966] 1 MLJ 18 (Federal
Court)
convicted under ISA and stced to death. Appealed: 1) HC had no
authority as no prelim enquiry/jury as required by the then CPC,
2)proced under Emergency Regulations ultra vires Art 8 of FC all
persons equal before law & entitled to equal protection
Held: save for exceptions in Art 150, Parl can enact any laws on any
subject to any effect, whether inconsistent with FC. In this case, the
Act in question even had specific provision to that effect ie cannot be
challenged on ground of inconsistency. Includes the right to delegate
part of that power to other authority. Extensive powers including to
enact special provisions for procedures in criminal cases not an
abrogation of powers of Parliament as Emergency can be terminated
by resolution of both Houses.

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Sources of Laws - Unwritten
Unwritten Law
English Law
Judicial Decisions/Precedents
Customs
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Sources of Law Unwritten
Customs of local inhabitants given legal force in Malaysia
British Common Law tradition - Introduced to straits
settlements thru Royal Charters if Justice, later extended to
Malays states thru administrative arrangements
legislation on specific matters 1937, formalise by enabling
legislations same as Borneo
Common law replaced Malay adat and syariah law as basic
law of the land reduced to law concerning family and
religious personal matters to Muslims only
1948 onwards 2 parallel courts, civil & Islamic courts
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Sources of Law Unwritten
Aboriginal, Chinese, Hindu, native customary laws
recognised but reduced to personal & family matters
Since Law Reform (Marriage and Divorce) Act 1976
(Act 164) intro common system of solemnisation &
registration of marriage without prejudice to
recognition of customary contracts of marriages
before the Act enforced in 1982, but not recog after
Borneo native customary laws still vibrant and
survive under a System of Native Courts
28
Sources of law English Law
S. 3(1) Civil Law Act 1956 (Revised 1972)
Peninsular Malaysia courts shall apply common law & rules of
Equity as administered in England on 7 April 1956
Sabah & Swk common law, rules of equity & statutes of
general application as administered on 1 Dec 1951 & 12 Dec
1949 resply
In spite of S.3(1) CLA - Commonwealth of Australia v Midford
(Malaysia) Sdn Bhd & Anor [1990] 1 MLJ 475
S.3(1) CLA does not mean English common law & rules of equity
should remain static. The doctrine of sovereign immunity which
developed after 1956 should apply to Malaysia too.

S.3(2) CLA in the event of conflict, rules of equity will
prevail over common law
29
Sources of Law English Law
Conundrum of English Statutes in Peninsular Malaysia divergent
views from Midford Case
Mokhtar v Arumugam [1959] MLJ 232 could not award interest
avail under subsequent English Act by virtue of S.3(1) CLA
Smith Kline & French Laboratories Ltd v Salim (Malaysia) Sdn Bhd
[1989] 2 MLJ 380 obiter dicta:- if provisions of imported
legislation are inapplicable in a country, then the court has & will
exercise jurisdiction to strike it down
Jamil bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217- Privy
Council case, up to courts in Malaysia to decide whether to follow
English Law, regard to circumstances in Malaysia, careful to apply
only what is permitted by law & no further than what is just to do
so
Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544-English
Law cannot be applied in criminal procedure.
30
Application of English Law still subject to 2 limitations:-
1) applied only in absence of local statutes on the subject matter -
lacunae
2) only parts which are suitable to local circumstances will be applied
proviso to S.3(1) CLA
Chou Choon Neoh V Spottiswoode [1869] 1 Ky 216 to apply English
Law with such modifications as to prevent from operating unjustly
& oppressively, inapplicable since will result in absurd & intolerable
consequences
Syarikat Batu Sinar Sdn Bhd & Ors v UMBC Finance Bhd & Ors
[1990] 3 MLJ 468 direct mind to local inhabitants or
circumstances. Cannot follow English Law as Malaysian Law &
practice (quasi law) requires endorsement of ownership on
registration card of vehicle cannot reposses since no such
endorsement
31
S.5(1) CLA in Peninsular (except for Penang & Melaka)
English Commercial Law applies as it stood on 7 April 1956
in absence of local legislation
S.5(2) CLA in Penang, Melaka, Sbh & Swk, English
commercial Law applies as it would in England, in the
absence of local legislation.
Kon Thean Soong v Tan Eng Nam [1982] 1 MLJ 323 English Law
of Partnership not apply as Malaysia has own statute
S.6 CLA specifically excludes English Land Law & rules of
equity related to land
United Malayan Banking Corporation Bhd & Anor v Pemungut
Hasil Tanah, Kota Tinggi [1984] 2 MLJ 87 equitable rules of
relief against forfeiture not available to proprietors of alienated
land in Malaysia National Land Code applies.

32
Sources of Law Judicial
Decisions/Precedents
Judicial decisions made in courts of law authority for legal
principal embodied in its decision, evolution of common law &
equity
Doctrine of Stare Decisis (binding precedent)
Heirarchy of Precedence
Vertical courts bound by prior decision of higher court
Horizontal - courts bound by its own prior decision or decision of court of
same level (coordinate courts)
Consistent, coherent, certainty, equality & fairness to similar cases,
however, circumstances change but court bound to follow, require Act
of Parlm to change
Exception
Distinguish on facts, material differences
Decision per incuriam ( in ignorance of earlier precedent)
Decision inconsistent with higher court but not expressly overruled
Decision of lower court pending appeal

33
Sources of Law - Precedent
Case law comprise of the following:-
Res judicata
Judgement of the court ie final order of court binds
immediate parties to the proceedings
Ratio Decidendi
Reason for the decision
Obiter dictum
Anything said about the law in the course of judgment which is not on
matter/issue at hand no binding power but persuasive
Persuasive precedent decisions of coordinate or higher
standing from other jurisdictions judicial comity
Original precedent, declaratory precedent

34
Heirarchy of Courts in Malaysia evolved
Judicial Committee of the Privy Council highest court
until 1978 limited to civil appeals, Federal Court
highest domestic court,
1987 Federal Court abolished & Supreme Court
highest court
1994 Supreme Court abolished & Federal Court
reinstated, Court of Appeal created
Singapore Courts decisions when part of Malaysia
2013 Subordinate Courts jurisdiction expanded &
Penghulu Court abolished
35
Sources of Law Precedent
Privy Council decision binding on Federal Court & High Courts
even if appeal from Commonwealth country
Khalid Panjang & Ors v Public Prosecutor (No 2) [1964] 30 MLJ
108 (Federal Court) Cwealth law same or similar law
House of Lords decision binding on Federal Courts of Malaysia
DG of IR v Kulim Rubber Plantations Ltd [1981] 1 MLJ 214 216 -
Affirmed Khalid Panjang case. Cited Lasala v Lasala [1979] 2
AELLR 1146 where Privy Council said to be bound by House of
Lords so this principal extends to House of Lords decisions.
Judicial comity to pay due & proper attention to them,
persuasive authority unless can distinguish them or hold them
per incuriam NB. HL decisions now bound by Civil Law Act 1956
Privy Council of England not bound by its own decisions
Read v Bishop of Lincoln [1892] AC 644
36
Sources of Law Precedent
Court of Appeal of England bound by its own previous decision &
courts of coordinate jurisdiction
Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 - CA bound to follow
its own previous decision and courts of coordinate jurisdiction save:-If
there is conflict of decisions, CA can choose, a decision tho not
expressly overruled cannot stand with Priviy Council decisions,
decision per incuriam of Priviy Council decision
Court of Appeal of Malaysia bound by its own
Hendry v De Cruz [1949] 15 MLJ Supp 25 (Court of Appeal) - CA bound
by its own previous decision following Young v Bristol Aeroplane Case
Federal Court of Malaysia bound by its own decision
Re Lee Gee Chong Deceased (1965) 31 MLJ 102 (Federal Court) - FC
bound by decision of Re Lee Siew Kow, Deceased a decision made by
Singapore Court of Appeal, considered same as then Federal Court of
Malaysia by virtue of s.88(3) of Malaysia Act. Affirmed Young v Bristol
Aeroplane Case in relation to FC

37
Defining case on conduct of judges in creating precedent
PP Kok Wah Kuan [2007] 6 CLJ 341, Federal Court, Richard
Malanjum CJ (Sabah & Sarawak) Held:
Role of judges goes beyond mechanical interpretation of pre-existing
law also consultative & creative and direct themselves to the
following principals:-
Formulating original precedents rely on customs & traditions of
land and stds & principals of justice in life of community when
formulating ori precdnt
Overruling earlier precedents judicial creativity in play to
overrule earlier precdnt, retrospective or prospective creates
new legal principals & new direction.
Constitutional Review Art 4(1) and 128 of the FC allows for
judicial review of legislative & executive actions can invalidate
the whole statute or part of it by way of doctrine of severability, ab
initio or form date of ruling. Art 162(6) allows court to modify pre-
Merdeka laws
38
PP Kok Wah Kuan [2007] 6 CLJ 341 (continued):
Statutory Interpretation Rules on Interpretation wide & includes
travail preparatoire judicial discretion to apply one or another
rules of interpretation of statutory construction, foreign law if in
pari materia, local law in isolation if declared sui generis (in local
context only without foreign decisions),may even consider moral
or public policy if feel appropriate. Need not view statute in
isolation can view entire spectrum of law in light of precedents,
related statutes, presumptions, principles, doctrines & standards
in the society.can imply laws & crystalised the inherent. Definition
of law revisited.
Operation of doctrine of binding precedent limits judicial
choices, bound by precedent but some flexibility &
maneuverability exists. Judges have refused to follow its
coordinate courts, Federal Courts have overruled itself and inferior
court refused to follow higher court indirect technique
39
PP Kok Wah Kuan [2007] 6 CLJ 341 (continued):
Doctrine of ultra vires statute may declare power
absolute or decision final & conclusive but statute on
broad terms. Judge may interpret literally or infer
implied limits & constitutional presumptions in the rule
of law to restrict scope of unlimited powers. Subjective
powers viewed objectively, purposive interpretation
favoured over literal. Procedural issue if mandatory,
violation nullify act, if directory, violation is curable
Import Rules of Natural Justice - Non-statutory
standards of procedural fairness. Wide discretion of
what to apply and to what extent.
40
Sources of Law - Precedents
Advantages
Realistic & practical applications as based on actual dispute &
facts
More flexible as law evolves based on case by case, legislation
generic, rigid & time consuming
Can escape Stare Decisis if can distinguish facts before him
Can overrule lower court decision if feel wrongly decided
Richly detailed with arguments from all parties & involves
discussion of merits of earlier cases creativity of judge
Disadvantages
Numerous & diverse cases, danger of missing relevant
precedent, needs extensive research
Need to distinguish between ratio decidendi v obiter dicta
usually from issues arising & being considered
41
Sources of Law - Custom
Peninsular Malaysia
Adat perpatih Malays in Negeri Sembilan, Naning in
Melaka on land tenure, lineage & election of
Lembaga, Undang & Yamtuan Besar, matrilineal
inheritance
Adat Temenggong other states. Patrilineal
inheritance
Sabah & Sarawak
Native Customary Laws applies in land dealings &
family matters adjudicated in Native Customary
courts

42
Judicial System as of 2013
Federal Court
Court of Appeal
High Court
of Malaya
Sessions
Court
Magistrates
Court
Syariah
Courts
Juvenile
Courts
High Court
of Sabah &
Sarawak
Sessions
Courts
Magistrates
Courts
Syariah
Courts
Native
Customary
Courts
Juvenile
Courts
Superior
Courts
Subordinate
Courts
43
Judiciary - Jurisdiction
Superior Courts
Art 121 FC establishment of Superior Courts
Courts of Judicature Act 1964 (Act 91) (Revised
1972) (CJA 1964) govern powers & jurisdiction
Subordinate Courts
Established by and derived their jurisdiction &
powers by Subordinate Courts Act 1948
Limited & prescribed jurisdiction
Controlled & supervised by superior courts
44
Judiciary - Jurisdiction
Both Courts vested with general jurisdiction over
civil, criminal, private & public disputes
Syariah Courts
Constitution (Amendment) Act 1988 added art
121(1A) which removed the Syariah Court from the
jurisdiction of these courts ltd to marriage & family
Other Courts established by specific Acts for
specific jurisdiction - Juvenile Courts, Special
Courts for Malay Rulers, Native Courts, Penghulu
Courts (now abolished)

45
Judiciary - Governing Principals
Doctrine of Separation of Powers between Legislative,
Excecutive & Judiciary
PP v Kok Wah Kuan [2007] 6 CLJ 341, Federal Court
12 year old convicted of murder & sentence to detention at the pleasure
of YDPA. Appealed on grounds S. 97(2) of Child Act where Parliament
consigned the measure of sentence to be served at the pleasure of the
YDPA/YDPN as the case may be contravene this doctrine & therefore
unconstitutional. CA upheld conviction but sentence set aside & released
because accepted grounds & no alternative penalty. PP appealed:-
amendment to Art 121(1) of FC no longer express separation of powers
of judiciary & executive/legislature jurisdiction only in so far as granted
to it by Federal law so Child Act not invalid nor unconstitutional.
Regardless of basis of our formation & intention behind framers of
Constitution, the doctrine no longer part of Malaysia. The penalty in
question is in lieu of death sentence.
However, take cognisance of Richard Malanjum CJs advice to judges on
judicial conduct in presiding over cases.
46
Judiciary Conflict of Jurisdiction
Wan Khairani Wan Mahmood v Ismail Mohamad &
Anor [2007] 6 CLJ 582, Court of Appeal
Defendant is subject to action for harta sepencarian in
Syariah Courts due to his divorce. Ex-wife took out
Injunction to prevent defendant from disposing of his
share of proceeds from acquisition of land owned by his
company which he appropriated personally.
CA upheld injunction efficacy of jurisdiction of syariah
courts would not be impaired if civil court determine
issues on company transaction. Further this is not strictly
concerning matters of faith but on commercial transaction
involving Muslims. Ct able to exercise jurisdiction without
violating Art 121(1A) of FC.

47
Judiciary Conflict of Jurisdiction
Wan Khairani Wan Mahmood v Ismail Mohamad & Anor
[2007] 6 CLJ 582, Court of Appeal (continued)
Followed Majlis Ugama Islam Pulau Pinang & Seberang Prai v
Shaik Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289, FC which
referred to Harun Hashim SCJ in Mohamed Habibullah bin
Mahmood v Faridah Bt Dato Talib [1993] 1 CLJ 264, SC Art
121(1A) resolved conflict of jurisdiction between syariah & civil
courts.
Islamic law matters exclusive jurisdiction of former. Dalip Kaur
Gurbux Singh v Pegawai Polis Daerah(OCPD), Bkt Mertajam &
Anor [1991] 3 CLJ 2768- Art 121(1A) takes away jurisdiction of
civil courts iro matters within syariah courts but it does not take
away jurisdiction of civil courts to interpret any written law of
the states enacted for administration of Muslim Law.

48
Judiciary Developments in Conflict
This doctrine of interpretation has sometimes resulted
interesting developments:-
Abdul Wahab Patail in Arab Malaysian Finance Berhad v
Taman Ehsan Jaya started interpreting Islamic Finance &
Banking structures but using conventional banking principals
hence decided that defaulters need not pay full amount due
to bank under profits as it is unearned has created 2
trains of thought & judicial decisions created confusion
amongst practitioners & bankers. Civil courts applied common
law principals & rules of equity to Islamic finance cases
without referring to Syariah Advisory Council advisory &
opinion.
49
Judiciary Developments in Conflict
Corrected by CA decision in Bank Islam Malaysia Bhd v
Ghazali Shamsudin
Have to apply correct interpretations of Islamic laws &
doctrines of Muammalat & its implementation via civil laws
Net effect
Central Bank Act S.51-60 referral of matters to Syariah
Council of BNM & decision to be followed (although some
jurists argue unconstitutional & therefore void)
Create special Islamic Finance Division in High Court,
training of judges
50
Judiciary Members
Chief Justice of the Federal Court
& Federal Court Judges
President of the Court of Appeal &
Court of Appeal Judges
Chief Judge of the High
Court of Malaya &
High Court judges
Sessions Court
Judges
Magistrates
Chief Judge of the High
Court of Sabah &
Sarawak &
High Court Judges
Sessions Courts
Judges
Magistrates
Superior
Courts
Subordinate
Courts
51
Judiciary Appointment of Judges
Art 122B FC provides for the Appointment of
Judges

Art 122AB(1) - Judicial Commissioners may be
appointed to carry out role of HCJ
52
Federal Court - Composition
Established by Art 121(2) highest court in
Malaysia
Members Chief Justice of Federal Court,
President of Court of Appeal, 2 Chief Judges of
the High Courts and 4 FCt judges & such other
judges appointed by virtue of Art.121(1A) of FC
Currently 7 FCt judges
Appointment of judges by way of Art 122B
Appointment by YDPA on advice of PM after
consultation with Conference of Rulers & Chief
Justice (CJ) (save for his own apptm)
53
YDPA, on advice of CJ, may appoint other
judges of high office as additional FCt judge
CJ may nominate a Court of Appeal judge
other than the President of CA to sit on FCt
Art 123 appropriate legal experience, citizen,
past 10 years been an advocate of HC or
member of judicial & legal svc
Appointment until age 65, extension up to 6
mths to complete part-heard cases
54
S. 74(1) of Courts of Judicature Act (CJA) -
Proceedings heard by 3 or more judges of uneven
number as determined by CJ (presiding judge)
S. 74(2) CJA - in absence of CJ, most senior judge
presides
S.80(1) CJA - Incidental directions & interim
orders may be made by a singe judge in FC but
may be discharged or varied by full court (s.80(3))
As final court of appeal, full bench of 5
Very important cases (rare) full bench of 7
55
Federal Court Jurisdiction
Art 121(2) FC vested with original, referral, advisory
and appellate jurisdiction
Original - Art 128(1)(a) and (b) FC & s.81 CJA to
decide over validity of Federal & State laws, disputes
between States & Federation and States - declaratory
judgements only (Art 128(1)(b))
Referral - Art 128(2) FC - Determine constitutional
issues before any other courts & referred to it by way
of special case, proceedings stayed pending decision,
thereafter remit the case to trial court to be disposed
of in accordance with its decision.
56
Advisory - Art 130 FC - YDPA may refer to FCt
constitutional issues which has or appears likely to
have arisen, on its effect, pronounce in open court
Rare as AG as adviser to Govt have full personnel &
financial resources to get advice from best legal
services avail
Govt of Malaysia v Govt of the State of Kelantan [1968] 1
MLJ 129 A company granted mining & forest concession
in return for advance payment of royalty under financial
package. FCt asked to advise on matter & found that the
transaction does not constitute borrowing within the
meaning of FC. Later, Art 160 extended meaning of
borrowing to negate the law established by this case.
57
S.96 CJA 1964 vested Appellate Jurisdiction
Civil appeals from the Court of Appeal with leave from the
FCt on any final judgm/order of CA or matter decided by HC
in exercise of its original jurisdiction.
Grounds of civil appeal to FCt: on point of law or improper
rejection or admission of evidence by lower court
S.97 CJA 1964 if appeal is on factual grounds, FCt may
refuse leave to appeal.
S. 92 CJA - May order new trial by HC
S.100 CJA 1964 new trial cannot be granted on ground of
improper rejection or admission of evidence unless FCt is of
opinion it has caused a failure of justice
58
Criminal appeals from decision of CA in its appellate
jurisdiction on matter decided in first instance by HC
question of fact or law or mixed
PP may appeal against acquittal, notice given in writing
with consent of PP
S.90 CJA 1964 FCt may sumarily dismiss appeal, confirm,
reverse or vary decision of CA, order retrial or remit matter
with its opinion to HC, make such order as deems just. May
dismiss appeal even find in favour of appellant on pt of
appeal if feel no substantial miscarriage of justice occurred
Ramli bin Kechik v PP [1986] 1 CLJ 308, 317
59
Court of Appeal - Composition
Art 121(1B) established CA - Created in 1994 by
Constitution of (Amendment) Act 1994 & Courts
of Judicature (Amendment) Act 1994
President (presiding judge) & 10 CA judges
(unless YDPA decides otherwise)
After consultation with CJ of relevant HC, High
Court judge may be nominated to sit on CA if
President of CA considers interest of justice
requires so
Proceedings heard by 3 judges
60
Court of Appeal - Composition
S. 38 CJA larger number may sit if President
deems appropriate
2.38(2) in absence of President, most senior
judge presides
S.44(1) incidental directions and interim
orders disposed of by single judge although
may be discharged of varied by full court
(s.44(3) CJA)
61
Court of Appeal - Jurisdiction
Appellate jurisdiction:
Civil Appeal:-
S67 CJA appeals on judgment or oder of HC in ex of its ori
or appellate jurisdiction & subj to any other written laws.
S68 CJA no appeal to CA if
Amount or value of claim (exclusive of interest) is less than RM250,000
except with leave of CA
Judgement or order made by consent of parties
Judgement or oder relates to costs only (discretion of ct), save with
leave of CA
Where by written law for the time being in force, HC decision is
expressly declared final.
62
Decision of judge in chambers in summary by way
of interpleader and facts not in dispute, appeal
only with leave of CA. But appeal allowed if in
open court trial. (Interpleader where 2 parties
are asked to initiate proceedings so a third party
can decide on how to deal with an issue eg
ownership of property)
63
Court of Appeal Jurisdiction
CA rehears case & has all powers & duties of HC
CA may:-
Under S.71 Order a new trial (regardless whether case was
ex of original or appellate jurisdiction of HC) but no new
trial on grounds improper admission or rejection of
evidence unless considers substantial wrong or miscarriage
of justice occurs
Reverse or vary decision of HC
Grounds of such orders:- error, defect or irregularity which
does not affect the merits or jurisdiction of the HC
Once disposed of, CA cannot reopen, rehear or reexamine is
decision
Lye Thai Sang & Anr v Faber Merlin (M) Sdn Bhd & Ors [1986] 1 MLJ
166
64
Criminal Appeals:-
S.50(1) CJA 1964 May hear on any HC cases in ex
of its original or appellate or revisionary
jurisdiction decided by Sessions Ct
S.50(2) if appeal against HC decision is in ex of its
revisionary jurisdiction in matter heard by
Magistrates Court, need leave from CA S.51(2A)
confined only to questions of law in course of
appeal/revision, whose determination affects it
S.61 - May take additional evidence
65
Appeal from PP, only consent of PP required.
CA may:- summarily dismiss, confirm, reverse,
vary decision of trial ct, order retrial or remit with
its opinion, makse such order as may seem just &
may by that order exercise any power which trial
ct might have exercised
May quash sentence & pass such other sentence
warranted in law if it considers so appropriate
Art 126 & S.13 CJA 1964 punish for contempt of
court

66
High Court - Composition
Art 121(1) of the FC 2 High Courts (HC) with
coordinate jurisdiction and status
HC of Malaya, principal registry in Kuala Lumpur
HC of Sabah & Sarawak
Distinct territorial jurisdiction over different
geographical areas
Art 122AA(1) each HC consists of Chief Judge
and min 4 judges
Currently 56 Judges & Judicial Commissioners (JC)
45 Penin, 11 S&S
67
High Court - Composition
S.18 CJA proceedings heard by single judge unless a
specific statutory provision provides otherwise
S.19 CJA sits at such time and place as CJ determines
O.92. r3A of Rules of HC confers HC right to transfer
proceedings between HC Malaya and S&S
Result of Gopal Sri Ram JCA observation in Fung Beng Tiat v Marid
Construction Co [1996] 2 MLJ 413
Re Teoh Then Pheng ex p D & C Leasing Sdn Bhd [1993]
2 MLJ 1 HC has power to transfer case to any other
court or to and from any Sub Ct (where HC may give
direction on appropriate conduct of case)
68
High Court - Jurisdiction
S.23(1) CJA (Amendment) Act 1994
May try all civil proceedings where
Cause of action arose within local jurisdiction of courts;
or
Defendant(s) resides or has his place of business within
the local jurisdiction; or
Facts of which proceedings based exist or alleged to
have occurred within local jurisdiction; or
Any land which ownership is disputed is situated within
the local jurisdiction
69
S.22 CJA Criminal Jurisdiction on all offences committed:-
Within local jurisdiction
On high seas on Malaysian registered craft
By citizen or permanent resident on any craft
Piracy as determined by laws of nations, by any person on high
seas
Under Penal Code on Extra-territorial offences
No criminal case may be brought to HC unless accused
properly committed for trial after prelim hearing in
Magistrates Court
S.24 CJA matrimonial, admiralty, bankruptcy/winding-up,
probate, administratin of estate, guardianship of infants
70
S.35(1) CJA supervisory & revisionary/appellate Jurisdiction over
subordinate courts:-
May call for record of hearing in sub ct, hearing stayed pending further
order of HC
Remove case ot HC or direct sub ct accordingly
May hear appeals from Sub Cts
Appellate Jurisdiction:-
Civil Appeal - S.28 CJA appeal must be more than RM10,000 save for
alimony cases where no limitation of value imposed
Criminal Appeal from Sub Cts
Appeal by way of rehearing
Reference on consitutional matters from Sub Ct
Can refer questions of Law in such appeals to CA if in public interest
or of paramount importance
71
High Court Divisions:-
Commercial (now with Islamic Finance Div), Appellate & Special Powers,
Civil, Criminal
Other Special Courts
Special Commissioners of Income Tax
Industrial Courts IRA 1967 hear matters on employers, employees &
trade unions, President of IC appointed by YDPA, panel of persons
representing both sides appointed by Min of Law. Hearing consist of
President & 2 panel members, 1 from each side. May be represented by
TU or Employees Union. Permission of President required if want lawyer.
IC may give award & may take non-legal matters into consideration.
Cheek Hong Leong v Kym Industries (M) SDn Bhd [1997] 7 CLJ 317, HC
S.33A(1) allows IR to refer to HC on Q of Law subj to 4 conditions, not
create automatic appellate jurisdiction to HC
Mas Golden Boutique Sdn Bhd v Md Zain Abu [1999] 2 ILR 583
Questions were taken as being grounds of appeal not question of law
for consideration of HC

72
Subordinate Courts
S. 3(2) of Subordinated Courts Act 1948
Sessions, Magistrates.
Amended & enforced 1 May 2013
Now Penghulu Courts (RM50 claims or penalty
RM25) abolished
Jurisdiction increased
Registrar or Senior Assistant Registrar in
chambers not sub court.
Public Bank Bhd v Chan Tak Kow [1988] 3 MLJ 330
Their jurisdiction is by virtue of O.32 r9 of RHC 1980
appeal to judge in chambers by O.56 R.1 RHC

73
Subordinate Court Session Courts
Session Courts - Civil & Criminal Jurisdiction
Civil Jurisdiction
Motor vehicle accidents, landlord & tenant & distress
unltd
Value not excedding RM1m
Specific performance, rescission of contracts,
cancellation or rectification of instruments
Parties entered into agrm to cede to jurisdiction of SC
provided issues triable by SC but for limitation on value
Can grant injunction & make declaration
Can proceed with whole matter even if
defence/counterclaim exceed jurisdiction but cannot
award more than limit. May transfer to HC
74
Subordinate Court Session Courts
Session Courts - Civil & Criminal Jurisdiction
Civil Jurisdiction (continued)
May relinquish claims in order to have SC due to lower costs
& fees but cannot split claims
Excluded jurisdiciton:- immovable property save for landlord,
tenant & distress (unless real issue of ownership in q but ok
if all parties consent), trusts, acc,declaratory decrees save for
interpleader & seizure of property & recovery of debt within
limit on value, probate, status of individual, guardianship/
custody of infants, dissolution of marriage (unless agrd to in
writing, orders within prescribed limit,)
Criminal Jurisdiction
Try all offences other than punishable by death. Stcg as
prescribed by law other than death
75
Subordinate Magistrate Courts
Magistrate Courts
Minor civil & criminal cases
Civil Jurisdiction
First Class Magistrate increased from RM25,000 to
RM100,000
Second Class Magistrate increased from RM5,000 to
RM10,000
Criminal Jurisdiction
First Class Mag try offncs w not more than 10 years stc or
fine only, S.392 & 457 of Penal Code Stcg not exceed 5 yrs,
RM10k, 12 strokes, combi
Second Class Mag try offncs w not more than 12 mths stc
or fine only Stcg not exceed 6 mths, RM1k, combi
76
Subordinate Juvenile Courts
Purview of Juvenile Courts Act 1947
Criminal offenders under 18 yrs old
S. 4(2) JCA First Class Mag + 2 lay advisors (1 woman)
advise considerations affecting
punishment/treatment of Juvenile
S.4(4) jurisdiction to try all cases save for punishable by
death
Closed court
Sent to approved institutions for corrective education,
or good behaviour bond, appear for stcg , probation
Juvenile may appeal to HC
77
Subordinate Courts Small Claims
Small Claims Court
Maintained under r.93 of Rules of Court 2012
Recovery of debt or liquidated demands in money
Claims not more than RM5,000
Submit Form 198 in prescribed form to Court
Registry at Magistrates Court
Low cost, no legal rep
Heard by Second Class Magistrate
78
Subordinate Courts - Native
Jurisdiction over native customs
Statutory courts stablished under relevant state Ordinances
in Sabah & Sarawak
Can try civil & criminal matters including breach of native
law or custom (include religion & matrimonial), land with
no issue doc of title from LO & everyone subj to same
native customary law, not exceed RM50 & everyone subj to
same native customary law (exclude land)
Sarawak citizen & is of race indigenous to Sarawak
Sabah citizen, child or grandchild of person indigenous to
Sabah and bornin Sabah or to father domiciled in Sabah at
time of birth.

79
Sarawak:
District Native Court Magistrate, Native Officer & 2
assessors. Imprinsonment not xceed 2 yrs & fine RM200
Native Officers / Chiefs Court Native Officer/Chief & 2
assessors, can impose 6 mths imprisonment + fine
RM100
Headmans Court Headman & 2 assessors. Can impose
fine not exceed RM50
Appeals go up the chain of heirarchy as above,
thereafter to Resident Native Court then to Native Court
of Appeals
80
Sabah:
Native Court District Officer as supervisory-appellate capacity
Native Courts subj to scrutiny by D.O. may quash, vary, direct
rehearing if proceedings irregular, improper or unconscionable.
Imprisonment must be endorsed by D.O., can hear appeals from
Native Court
Appeal from D.O. to Native Court of Appeal presided over by HC
Judge, Resident where ori proceedings occurred & 1 native
chief. Judge has powers of HCJ
Ongkong Anak Salleh v David Panggau Saindin & Anor [1983] 1 MLJ
419
District Native Court not subordinate to HC. HC has no supervisory
jurisdiction over it
81
Financial Mediation Bureau banks v customers
Consumer Claims Tribunal
consumers v traders vide Consumer Protection Act 1999,
consist of Chairman & Deputy from Judicial services, 5 or
more lawyers or persons in 4
th
Sched of Sub Cts Act (First
Class Mags/Residents, DO, Class 1 Admin Off, SARs)
S. 116 - Decisions final & binding as per Mag Ct &
enforceable
S.117 - Failure to comply within 14 days, criminal offence
liable to 2 yrs jail, fine RM5,000 or both, continuing offce
at RM1,000 pd
82
Mediation
Facilitative process to resolve dispute
quickly. Mediators role is determinative.
Conciliation
Advisory or directive role
Assist parties to id dispute, develop
optons, determine alternatives, reach
agreement
83
Arbitration
To settle commercial dispute
Formal dispute resolution process
Hearing before independent third party
Arbitrator makes an award which is final &
binding unless agreed to contrary at
beginning
Determinative process
84
Arbitration
Under purview of Arbitration Act 2005, S. 9(2) must be in
writing (agrm, docs, communication or exchange of stm of claim
& defence where agrm is alleged by one & not denied by other)
S. 10 AA if there is arbitration agreement, parties cannot avoid
it by filing case in court affirming caselaws (see textbook)
Standard Chartered Bank Malaysia v City Properties Sdn
Bhd[2008] 1 CLJ 496 HC allowed stay in proceedings
pending arbitration pursuant to S.10 of AA
O.69, Rules of Court 2012 provides for procedure for
commencement of claims, applications to set aside or enforce
award, refer q of law, prelim q of law, registration of foreign
award, stay of proceedings, extension of time, svc out of
jurisdiction etc
85
Law, Justice & Morality
Application of Laws
Secular Rule of Law
Law reigns supreme although flawed
Distinct from Religion (contrary to religious norms eg
Usury), Justice (fairness & equity eg poor thief) & Ethics
(moral standard & beliefs eg what majority thinks)

Subject to Societal norms
What society deems right at that time
What about minority?

Ideal approach?
86
Law & Its Basic Functions

THANK YOU

SHARIFAH MAZWIN
016-2386510 (Whatsap, Viber)
mazwin@smartentity.com
sharifah@ssabalaw.com
87

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