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MALAYSIAN LEGAL SYSTEM Law 416 (Business Law)
Malaysian Legal System
(1) SOURCES OF LAW IN MALAYSIA
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
Hierarchy of the courts Jurisdiction of the Courts
Sources of Malaysian Law
LEGAL SOURCES OF MALAYSIAN LAW
Common Law Equity
CUSTOMS (ADAT) JUDICIAL PRECEDENT
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 4 .
i. etc. law which is not being enacted by the Parliament or State Assemblies and which is not found in the written Federal and State Constitutions. local customs. The unwritten law comprises the following: English Law Customs Judicial Precedents 5 . Unwritten law is found in cases decided by the courts. Unwritten law is simply that portion of the Malaysian law which is not written.e.
These rights written in the Constitution can only be changed by a two-thirds majority of the total number of members of the legislature.FEDERAL AND STATE CONSTITUTION 1. any laws passed after Merdeka Day which is inconsistent with this Constitution shall to the extend of inconsistency. The FC enshrines the basic or the fundamental rights of individuals. 6 .1 The Federal Constitution (FC) Art 4. This is in contrast to normal laws which can be amended by a simple majority. be void.The supreme law of the land.
FEDERAL AND STATE CONSTITUTION The State Constitution There are also Constitutions of the 13 States comprising the Federation. Some of these provisions include matters concerning the Ruler. the Legislature. 7 . etc. which forms part of written law in Malaysia. the Executive Council.
8 . but those made after 1957 are called Acts. The laws in Sarawak are called Ordinances. In Malaysia. laws made by the State Legislative Assemblies (except Sarawak) are called Enactments. laws are legislated by the Parliament at the Federal level and by various State Legislative Assemblies at the state level. On the other hand.2 FEDERAL AND STATE LEGISLATION Legislation refers to law enacted by a body constituted for this purpose. Laws that are enacted by the Parliament after 1946 but before Malaysia’s Independence in 1957 are called Ordinance.1.
1957 are called Ordinance Law enacted after 31.08.08.1957 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 9 .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.
LEGISLATIVE PROCESS IN MALAYSIA (How bill becomes law?) 10 .
The House then either passes or defeats the Bill. the text is printed and distributed. After the Bill is passed at this stage. it is sent to the Yang Di-Pertuan Agong for the Royal Assent.LEGISLATIVE PROCESS IN MALAYSIA FIRST READING When a Bill is first introduced in one of the two houses. 68 (Fed. only the title is actually read. The Committee then submits a report on the Bill to the house. If the second house amends the Bill. Consti.). The Bill then becomes a law upon publication. OTHER HOUSES ROYAL ASSENT 5 When the Bill has passed both Houses in accordance with Art. it is sent to the other house. where it follows a similar pattern. If accepted. Members debate the Bill. 11 . When a Bill has passed one House. the Bill is passed on for 2 consideration by a committee of the house. SECOND READING 1 A COMMITTEE OF HOUSE Considers the Bill in detail and may amend any part of it. the Bill goes on to a third reading in the House. If the report is approved. the Bill must be returned to the first house for its approval 3 THIRD READING 4 Debate takes place and amendments may be put to a note.
Subsidiary legislation deals with the details about which legislature has neither the time nor the technical knowledge to enact laws.or other instrument made under any Ordinance. regulation.1. rule. 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. 12 . notification. order.3 Subsidiary Legislation/Delegated Legislation Interpretation Act 1948 and 1967: Subsidiary Legislation means any proclamation.
13 . After the cut off date. together with statutes of general application.04.1951 and Sarawak 12.in West Malaysia.12. as administered or force in England on the 01.4 • ENGLISH COMMON LAW AND EQUITY English law comprises of two parts: (a) (b) Common Law Equity Sec 3(1) Civil Law Act 1956. Section 3 (1) connotes the strict application of the English law in Malaysia before the cut of date. English law does not become law in Malaysia.12.1949 respectively. Thus.1. the courts shall apply the Common Law of England and the Rules of Equity as administered in England on the 07. the courts shall apply the English Common law and Rules of Equity.1956 (cut off date) In Sabah and Sarawak.
1.5 Customs(Adat) CUSTOMS MALAY CHINESE INDIAN ADAT PERPATIH ADAT TEMENGGUNG CHINESE CUSTOMARY LAW INDIAN CUSTOMARY LAW 14 .
to stand by cases already decided. 15 .1.e.6 Judicial Precedents Judicial Precedents are decisions made by a previous judge in previous cases that have similar situations. 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. Decisions of these courts were made.
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 16 .
COA is also bound by its own decision HC decision is binding on all subordinate courts Bound by the decisions of the superior courts. 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. COA’s decision is binding on all lower courts. 17 .
being the result of actual disputes rather than hypothetical situations (ii) there is a degree of certainty and predictability in the law 18 .Advantages of the doctrine: (i) the law evolved is more practical.
Art 3 FC.1. Ijtihad etc. Ramah v. Qiyas.Islam is the religion of the Federation. Islamic law is not foreign law but local law and the law of the land.7 Shariah Law Primary Sources: Al-Quran & As-Sunnah Secondary Sources: Ijma’. Laton (1927) 6 FMSLR 1278. 19 . but other religions may be practiced in peace and harmony in any part of the Federation.
It can be said that the jurisdiction given by the State and Shariah courts is limited. 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. 20 .
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 21 .
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 22 .
Federal Court (FCt) FCt replaced the Supreme Court in mid1994 as the highest court. Instituted by Article 121 of the Federal Constitution. 23 . FCt is the highest court in Malaysia.1.
1994.e. Court of Appeal (COA) The COA was established under Article 121 of the Federal Constitution. The composition of its judicial personnel is prescribed in Article 122A of the Constitution. 7. 2:1 (2 to 1). On 24.11) Decisions are made by majority i. three judges at any one time OR more (but must be of uneven numbers i. the COA was created to act as an intermediate appeal chamber before proceeding straight to the FC. 5.06. 5:4.e. 3:2. 9. 24 .2. 4:3. 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.
If the amount is less than RM250.000 the parties must get the permission from the Court of Appeal. 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. 25 .000.Court of Appeal Section 50 and 67 of the Courts of Judicature Act 1964 The court can hear both Civil and Criminal appeal cases. Criminal Appeal Cases Has jurisdiction to hear and determine any appeal against the decision of the High Court.
High Court (HC) Established under Article 121(1) of the Federal Constitution.3. 26 . 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.
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. 27 . Has unlimited jurisdiction to try all civil proceedings within the local jurisdiction of the court. The general jurisdictional rule in relation to criminal matters is reflected in Section 22(1)(a) of the Courts of Judicature Act 1964.
4. The purpose for such action is to ensure the correctness. the SC assumes a limited supervisory role over the Magistrates’ and Penghulu’s courts. and the regularity of the proceedings. Sessions Court (SC) A SC is under the charge of a SC judge. 28 . legality or propriety of the decision recorded or arrived at. Under Section 54 of the Subordinate Courts Act.
(determined by the High Court) Criminal cases All offences other than offences punishable with death. landlord and tenant. bankruptcy. enforcement of trust. specific performance. 29 . injunction.000 if it concerns motor vehicles accident.000. May entertain cases above RM250. divorce.000 if it concerns. May impose any sentence allowed except sentence of death.Session Court Civil cases All suits where the amount in dispute or the subject matter does not exceed RM250. May not entertain even if its below RM250.
This court has the jurisdiction to hear civil cases and criminal cases. 30 . Magistrates’ Court (MC) Familiar to most urban people as it is established in all major towns and sometimes goes on circuit to regional areas.5.
31 . Civil .e.Performs minor function i. 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. granting bail.e. Second Class Court: Civil .To try all litigations where the matter in dispute or subject matter does not exceed RM25. There are two (2) types of classes of magistrate i.000. 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. mentioning cases.Magistrates’ Court This court has the jurisdiction to hear civil cases and criminal cases.
e. Henry Gurney School. Melaka. they are sent to ‘corrective’ school i. 32 . 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. Magistrates’ Court for Children (MCC) Established under the Child Act 2001 (Act 611). It can try all offences except those punishable by death and it is presided by a First Class Magistrate and 2 advisors.6. The court has the jurisdiction to hear cases regarding offenders between the age of 10 – 18 years. When a juvenile is found guilty.
7. Penghulu’s 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 33 .
Penghulu’s 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. 34 .
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