MALAYSIAN LEGAL SYSTEM

TOPIC 1

CLASSIFICATION OF LAW
Law

INTERNATIONAL LAW
Public Law (Indiv & State)

Private law Public International Law Private International Law ( Individuals inter se)

Criminal law Constitutional Law(Rts of Indiv in the State) (Offences agst the State)

CONTRACT

TORT

TRUST

DIVISIONS OF LAW


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

Criminal law : Crimes where the offences are against the State Elements : Actus Reus ( a wrongful act) and Mens rea ( a guilty mind. Burden of Proof is beyond reasonable doubt.

DIVISIONS OF LAW


Civil Law : Not by the State .The Legal action is taken by an individual (plaintiff) who suffered loss or harm due to the acts of the defendant. Burden of Proof -Balance of probability not beyond reasonable doubt. Onus of Proof is on person who so alleges. Q: Which division does law of contract falls ?

DIVISIONS OF LAW
 

National law - internal legal rules of a country. International law - laws regulating the external relations of States with one another. Pedra Branca/Pulau Batu Puteh between Singapore and Malaysia on 23/5/2008.

Public law regulates relationship between citizen and the State , and may further divided according to the areas of law dealing with different types of matters affecting the citizen-State relationship e.g. constitutional citizenlaw , administrative law and criminal law.  Private law regulates relationship between citizens and another and may be further divided according to the ways it regulates these relationship law


SOURCES OF LAW
Federal Constitution, State Constitution Legislation, Subordinate Legislations. Enacted by Parliament or the State Assemblies and found in the written Federal and State Constitution After 1947 Before 1957 Ordinances After 1957 Acts By State Legislative Assemblies (except Sarawak) Enactments .Sarawak - Ordinances

SOURCES OF LAW
English law Malaysian Case law Custom Native Law Islamic Law

FEDERAL CONSTITUTION


 

Federal Constitution 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 inconsistency, void . Constitution sovereignty Laws enacted by Parliament and State Assemblies should not offend the constitution their powers are limited by the constitution. Repco Holdings Bhd v PP [1997] 3 MLJ 681 per Gopal Sri Ram JCA. 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 it wishes parliamentary sovereignty

State Constitutions


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

LEGISLATION AND ENACTMENTS

 

Legislation enacted by Parliament- Art.73. ParliamentThey are laws made by Parliament that extend throughout the country and can have extra territorial jurisdiction Articles 7373-77 e.g. Contracts Act 1950; Partnership Act 1961. Ninth Schedule of the Federal Constitution provides the Legislative Lists - List 1/Federal List; List II/State List; List III or Concurrent List Art. 74,77 Laws made by the State Assembly/Legislature applies only to their respective states State List/ List II. Ordinances are laws made by the King during a proclamation of an Emergency when Parliament is not in session

DELEGATED LEGISLATION


  

Subordinate /Delegated :Legislation 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 statute. There are federal subsidiary legislation and state subsidiary legislation. Proclamation/rules/regulations/byeProclamation/rules/regulations/bye-law/order/statutory instrument/ made under any Ordinance,Enactment or other lawful authority and having legislative effect Eg ;King/Minister/government department/local authorities/public bodies/professional bodies. Must be within the ambit of enabling/parent legislation. If not it is ultra vires i.e. null and void except during emergency

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


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

JUDICIAL DECISIONS
Common law or judge-made law judge They are laws made by judges sitting in the superior courts. Its 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, the laws are incomplete. There may exist lacunas in the law. In the process of interpreting and applying the laws, judges inevitably lay down legal principles that become law through the doctrine of binding precedents. e.g. law of negligence Donoghue v. Stevenson [1932] the case of the 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 ultimate consumer. But the House of Lords altered that position and established a new principle of law.

HIERARCHY OF THE COURTS

 Courts:
Federal Court Superior courts

Court of Appeal

High Court of Malaya Sessions Court Magistrate court

High court of Borneo Sessions Court Lower/ subordinate Courts

Magistrate court

COURT STRUCTURE
 

 

Divided into superior, subordinate courts and specialised courts. Subordinate Courts Sessions Court and Magistrates Court, Penghulus Court (W.Msia) and Natives Court (E.Msia) Superior Courts High Court, Court of Appeal and Federal Court. Specialised courts Juveniles Court, Labour Court, Industrial Court and Martial Court.

Courts in Malaysia

The Federal Court, Court of Appeal & High Court are superior courts. The Federal Court & Court of Appeal are appellate courts. The High Court has original jurisdiction ( a trial court/court of first instance for certain matters), appellate jurisdiction (hear appeals coming from the Sessions & Magistrates Courts) and supervisory jurisdiction. The Sessions Court and Magistrates Courts are subordinate or inferior courts.

JUDICIAL PRECEDENT

A previous decision of a superior court in a case where the issues are similar constitutes a precedent that must be followed by a court lower in the hierarchy. They are authoritative & binding on subsequent cases known as the doctrine of judicial precedents or star star decisis (let the decision stand). Distinguish between: the ratio decidendi the legal principle/basis upon which the case was decided and obiter dicta remarks made in passing that has no binding effect. Both form part of the judgement of the court.

JUDICIAL PRECEDENTS


Subordinate courts are bound by precedents laid down by the superior courts but their own decisions are not binding on any court A High Court decision is binding on all subordinate courts but the High Court judge is not bound to follow the decision of another. Court of Appeal bound by its own decisions and bound to decide which of two conflicting decisions of its own . Not bound to follow if decision made is per incuriam. Advantages and Disadvantages

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

Islamic law is state law (State List) and Syariah courts are state courts unlike civil law which is federal law (Federal List) and is administered by the civil courts which are federal courts. (Ninth Schedule, Federal Constitution). Civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts Clause 1A of Art. 121 of the Federal

NATIVE LAW

Applicable only to the natives/indigenous peoples of Sabah and Sarawak in respect of their native law and custom, including the personal law relating to religion and matrimonial matters. Applied by the Native Courts in these 2 states.

 Summary

SOURCES OF THE LAW

Customary Law Judicial Precedent Federal Constitution

Native Law Sources of Law

English Common law

State Constitution

Subsidiary Legislation

Legislation Islamic Law

Federal Laws Enactments Ordinances

CONCLUSION
 

 

Law and legal system is akin to UK. Adversarial system . European Continental Countries , Interlocutorial System Being a commonwealth country, our laws tend to be similar to other countries within the commonwealth whether western or eastern but we have eventually evolved our Malaysia common law itself,and legislation is accordingly to Malaysia circumstances and needs although adopt approach of other countries . Gradual emergence of Islamic thinking and principles in the Malaysian laws. Regionalisation/globalisation/internationalisation and pressures from World Bodies have begun to have impact on the Malaysian laws to succeed to the assemblage of developed nations.