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Topic 1-Malaysian Legal System 2011

Topic 1-Malaysian Legal System 2011

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Published by: Vincy Ng on Feb 07, 2012
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‡ 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)




e.DIVISIONS OF LAW  3 divisions of law i. national and international law. criminal and civil law.  Criminal law : Crimes where the offences are against the State ‡ Elements : Actus Reus ( a wrongful act) and Mens rea ( a guilty mind. public and private law. Burden of Proof is beyond reasonable doubt. .

Q: Which division does law of contract falls ? o .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.DIVISIONS OF LAW  ‡ Civil Law : Not by the State .

administrative law and criminal law. constitutional citizenlaw . International law . 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.  Private law ± regulates relationship between citizens and another and may be further divided according to the ways it regulates these relationship law  .g.laws regulating the external relations of States with one another. Pedra Branca/Pulau Batu Puteh between Singapore and Malaysia on 23/5/2008.DIVISIONS OF LAW   National law .internal legal rules of a country.

Sarawak . 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 .Ordinances .SOURCES OF LAW Federal Constitution.

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

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. parliament is the supreme law making body. void . to the extent of the inconsistency.FEDERAL CONSTITUTION  ‡ ‡ ‡   Federal Constitution Art 4(1) Federal Constitution . In countries like the UK and New Zealand.It is the supreme law of the country and any law that is inconsistent with the constitution is. amend and repeal any law it wishes ± parliamentary sovereignty . It has unlimited powers to make.

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

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

DELEGATED LEGISLATION  ‡ ‡     Subordinate /Delegated :Legislation These are rules & regulations enacted by an authority e. Proclamation/rules/regulations/byeProclamation/rules/regulations/bye-law/order/statutory instrument/ made under any Ordinance. Minister or body that have been conferred or delegated the power by the parent or enabling statute.Enactment or other lawful authority and having legislative effect Eg .g.King/Minister/government department/local authorities/public bodies/professional bodies.e. Must be within the ambit of enabling/parent legislation. null and void except during emergency . There are federal subsidiary legislation and state subsidiary legislation. If not it is ultra vires i.

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).  Only applicable if: S. .ENGLISH LAW Common law and rules of equity.

‡ It¶s 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. But the House of Lords altered that position and established a new principle of law. There may exist µlacunas¶ in the law.g.JUDICIAL DECISIONS Common law or µjudge-made¶ law µjudge‡ They are laws made by judges sitting in the superior courts. Stevenson [1932] ± the case of the snail in the ginger beer bottle. judges inevitably lay down legal principles that become law through the doctrine of binding precedents. . ‡ e. law of negligence ± Donoghue v. the laws are incomplete. Before this case the common law did not recognise that the manufacturer of a product owed a duty of care to the ultimate consumer. ‡ In the process of interpreting and applying the laws.

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 .

Industrial Court and Martial Court. subordinate courts and specialised courts.M¶sia) Superior Courts ± High Court. Penghulu¶s Court (W.COURT STRUCTURE     Divided into superior. Specialised courts ± Juveniles Court. Subordinate Courts ± Sessions Court and Magistrates Court. . Court of Appeal and Federal Court. Labour Court.M¶sia) and Natives Court (E.

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

.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. Both form part of the judgement of the court. They are authoritative & binding on subsequent cases ± known as the doctrine of judicial precedents or staré staré 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.

Not bound to follow if decision made is per incuriam.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 . Advantages and Disadvantages .

ISLAMIC LAW Applicable only to Muslims and administered in the Syariah Courts which are religious courts. Civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts ± Clause 1A of Art. Federal Constitution). ‡ 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. 121 of the Federal ‡ . (Ninth Schedule.

Applied by the Native Courts in these 2 states.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. .

 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 .

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.CONCLUSION     Law and legal system is akin to UK. Gradual emergence of Islamic thinking and principles in the Malaysian laws. Adversarial system . . 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. Interlocutorial System Being a commonwealth country. European Continental Countries .and legislation is accordingly to Malaysia circumstances and needs although adopt approach of other countries .

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