AMYLIA BINTI ISMAIL

Malaysian Legal System

INTRODUCTION

1.0 what is Law?

The word “law” is difficult to define, particularly as it is used in many different ways. It contains, however, the concepts of orderliness, universality and objectivity. The term „law‟ is used in many sense, we speak of the laws of physics, laws of games, laws of state or law of traffic. When we speak about the law of the State we use the term “LAW” in a very special and strict sense, and this law may be defined as rule of human conduct, imposed upon and enforced among the members of a State.

When we speak of the law we usually imply the whole of the law, however it may have been formed, much of the Malaysian law has been created out of the English customs, but a great part of the law has been created by statute i.e. Act of Parliament.

Human being resorts to various kinds of rules to guide their life. Different people perceive law differently. For the lawyers, they see it as their exclusive preserve as laypersons depend largely on them to explain the intricacies of the law. For the average person he may see it as a nuisance for having to comply with various procedures, which he or she does not understand.

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Thus moral rules and ethics remind us that are immoral or wrong to tell lies or engage in drugs or to get involved in a brothel business. If we breach these moral and ethics we may lose friends or their respect.

Law performs various functions in society and its pervasiveness may impinge our lives. Amongst others, we are compelled by law to have a birth certificate and an identity card etc

1.2 What is justice?

In Malaysia we practice adversarial system, which means that it is the parties through their advocates who control the course of inquiry. The parties decide what evidence shall be adduced subject to the rules of admissibility and it is on the basis of the admissible evidence adduced by the parties that the court must come to a decision. The judge acts as an impartial referee, there to ensure that the parties comply with the rules of procedure and evidence in presenting a case.

Justice refers to fairness or rightfulness. However, what is justice in Malaysia may not necessarily mean justice in other parts of the world. Justice must not only must be done but seen to be done. That‟s why we have open court system.

1.3 Rule of Law

The rule of law is the essential doctrine of the British Constitution. It is not written code of rules but the general principle implicit in the common law which the courts will apply, unless some statute can be quoted modifying the application.

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The rule of law cover three essential aspects.:-

a. no person can be punished except for a definite breach of law, established in the ordinary law courts of the land b. No person is above the law and everyone must bear the legal consequences of his own act. Equality before the law. c. There is an absence in the UK of any special body of courts to try cases where the citizens is in conflict with the government unlike in France where litigation between citizens and state officials is dealt with by special administrative courts.

It is often stated that it is from the principle of the rule of law, all forms of liberty, persons liberty. liberty of speech and freedom of press are derived.

1.4 Classification of Law

Law can be classified into various areas. Generally speaking it ca be categorized into three main areas.

1. 2. 3.

Public Law and Private Law Substantive Law and Procedural Law Private International and Public International Law

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1.5 Public Law

Public law regulates the relationship between the citizen (an individual or group of people) and the State. Example. In a murder case where Daniel murdered Budin. Therefore here Daniel has committed a crime which is against the State (King‟s law) – R v Daniel. (R= REX). Public law is divided into constitutional law, administrative law and criminal law.

Constitutional Law – defines the structure of the principal organs of government and their relationship to each other, and determine their principal functions and the rights of individual under that government. Example in Malaysia:

Article 6(1) of the Federal Constitution:- says no person shall be held for slavery.

Article 8(1) of the Federal Constitution: - says all person are equal before the law and entitled equal protection of the law.

Administrative Law – is defined as that body of legal principle which concerns the rights and duties arising from the impact upon the individual of the actual functioning of the executive instrument of the government. In synopsis we can terms it as the law that regulates the duties and exercise of powers by administrative authorities.

Criminal Law – deals with acts or omissions which are offences against the State and for which the offender is liable to be tried and if found guilty, will be punished

It is codified in legislated statutes or can be enacted through the initiative process Thus . Substantive law stands in contrast to procedural law.6 Private Law Private law deals with the relation between one citizen and another citizen. murder . In this situation Intan will be the Plaintiff because she is the one who is initiating the action and Hezrynda will be the defendant. Here Intan has a cause of action against Hezrynda. Land Law and commercial law in general. It is also known as Civil law. Substantive law defines crimes and punishments (in the criminal law) as well as civil rights and responsibilities in civil law. Family Law. Crime is defined as of disobedience of the law forbidden under pain of punishment. Legal action may be commenced or initiated by individuals seeking for damages or compensation. The punishment for crime ranges from death or imprisonment to a money penalty or absolute discharge 1. It includes contract.7 Substantive Law Substantive law is the statutory or written law that governs rights and obligations of those who are subject to it. which comprises the rules by which a court hears and determines what happens incivil or criminal proceedingsIt the body of rules of law in the above branches. Intan v Hezrynda 1. Example where Intan and Hezrynda entered an agreement and Hezrynda breached the contract. Tort.AMYLIA BINTI ISMAIL according to the law. Substantive law defines the legal relationship of people with other people or between them and the state.

8 Procedural Law Procedural law deals with the method and means by which substantive law is made and administered. territorial waters etc. makes a contract in Madrid with Jeniffer. or a crime prosecuted under the criminal law. Public international law deals with relationship between states.9 International Law Includes Private and Public International Law. 1. Bigamy is a statutory offence and Passing off is a tort at common law. The time allowed for one party to sue another and the rules of law governing the process of the lawsuit are examples of procedural laws. System of law applicable to a marriage between 2 different nationals in a third country.. Thus Nurul. E. the court will have to determine by the . a Malaysian national. 1. A legal action is started by a writ in civil cases and by summons in criminal cases. If Nurul wants to take an action against Jeniffer. Private International law is concerned with the application of various national laws of the facts of a particular case involving two or more countries eg.t lays down the rules governing the manner in which a right is enforced under civil law.g. Border.AMYLIA BINTI ISMAIL is common rule offence. Certain writers hold that there is no world authority with power to enforce the rules or the laws.

1 FEDERAL CONSTITUTION Malaysia has a written constitution unlike the United Kingdom. However our Parliament as a legislative body has the capacity to amend . the Federal Constitution b. The . repeal and make new constitution by way of two third majority vote of the both houses of Parliament. any law which is inconsistent with the Federal Constitution is invalid.10 SOURCES OF LAW The main sources of law in Malaysia can be categories as follows a. Its law making power is limited by the provisions in the constitution. Federal law made by Parliament d. State laws made by State Assemblies e. Islamic Law 1. Generally. The Federal Constitution is the supreme law of the land. ( Dewan Negara & Dewan Rakyat). Principles of English Law g. the 13 Constitution of the States comprising the Federation c. Judicial Precedent/ h.10.AMYLIA BINTI ISMAIL rules of the private international law which law is to be applied. The Malaysian Parliament functions under a written constitution and is governed by it. Malaysian or Spanish law? 1. Federal and State Subsidiary Legislation f.

A Menteri Besar or a Chief Minister heads the government. .2 THE STATE CONSTITUTION The 13 States of Malaysia have individual constitutions. namely that Parliament has. and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament‟ How far is this true after the signing of treaty of Rome in 1972? How supreme is Parliament? 1. the right to make or unmake any law whatever. In England Parliament is Supreme and has full power to make law on any matter. members of the Executive Council are known as State Ministers. (In the Malay States a cabinet known as the Executive Council assists the Menteri Besar) In Sabah & Sarawak. which provide for a single chamber Legislative Assembly in each state. under the English constitution. According to Dicey: „ The Principle of Parliamentary sovereignty means neither more nor less than this.AMYLIA BINTI ISMAIL Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government.10.

Parliament and Legislative Assemblies have powers to enact laws in their respective areas. Act . commerce and banking were patterned on English Models (or in some instance other colonial laws) e.4 ENGLISH LAW The supremacy of English Law remains in Malaysia even after independence. Laws made by Parliament may extend to the whole country. In Malaysia. 1. Section 3 and 5 of the Civil Law Act 1956 provide that English law relating to contract is applicable in Malaysia in relation to areas not covered by our legislation or our case law.Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently. However.10. The English Law is adopted so far as they were suitable to local conditions. Many of the local laws especially those affecting trade.10.Federal Law made by Parliament Enactment . which has power to make law.3 LEGISLATION It refers to laws made by a person or body.g. .AMYLIA BINTI ISMAIL 1. Our courts have also tended to look towards the English Law to aid them in the interpretation of the Contract act. laws enacted by a State Assembly only apply to that particular state only.State Law made by Legislative Assemblies Ordinance .

10. .5 SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION Also known as delegated legislation..10.Judge made law. This system was inherited from England 1.6 THE COMMON LAW Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative. 1.AMYLIA BINTI ISMAIL 1. An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments. The courts possess civil jurisdiction over offences by Muslim against the religion. A statute will confer power on an authority for it to enact rules and regulation. The term means "way" or "path". it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence Applicable to Muslims only and administered in the Syariah Courts.10.7 SYARIAH LAW Is the body of Islamic law.

the judge does not have to follow it. but may consider it. The doctrine. the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie"). A precedent does not bind a court if it was found there was a lack of care in the original “Per Incuriam”.8 THE DOCTRINE OF STARE DECISIS ET NON QUIETA MOVERE / BINDING PRECEDENT The doctrine of Stare Decisis is a Latin legal term. for example if a statutory provision or precedent had not been brought to the court's decision. this is known as the reason for the decision orratio decidendi.10. used in common law to express the notion that prior court decisions must be recognized as precedents. and to the legal systems that derived from it such as those of Australia. This means that when judges try a case they will check to see if a similar case has come before a court previously. Only the statements of law are binding. and if there was a precedent set by an equal or higher court. states that within the hierarchy of the courts a decision by a higher court will be binding on those lower than it. The Federal Court however does not have to follow its own precedents. If a . all other reasons are by the way or obiter dictum see Rondel v.Why do lawyers cite previous cases from thick volumes in their arguments before the court? The answer is because the common law The doctrine of binding precedent or stare decisis is central to the English legal system. A precedent is a statement made of the law by a Judge in deciding a case.AMYLIA BINTI ISMAIL 1. then the judge should follow that precedent. Worsley (1969) 1 AC 191. Canadaand New Zealand. according to case law. More fully. If there is a precedent set in a lower court.

by a subsequent decision by a higher court or Act of Parliament. The last situation brings about the greatest problem of the precedent system. What about Malaysia? Do we adhere to these principles of judicial precedent? Even when we have statutes. and that the prior court‟s decisions are authoritative for his court.. we still look to the judges interpretation of the law. then it is very likely that many cases that have been decided upon that precedent will return to court. it becomes increasingly unlikely that a precedent is overruled the older it is is found in decision of the superior court. in that if a higher court overrules a precedent that is quite old. Persuasive precedents are those that have been set by courts lower in the hierarchy.AMYLIA BINTI ISMAIL court finds a material difference between cases then it can choose not to be bound by the precedent. . whereas Act‟s of Parliament are always Prospective unless stated. Judges are obliged to decide the case before him by reference to a previous decision when the conditions for the operation of the doctrine of precedent are satisfied. which provides for consistency and certainty in decision. Therefore. Most importantly precedents can be overruled. relevant to the determination of an issue of law in the case in question. These are the previous decision decided in the previous case. they may be persuasive but are not binding . The statute must be read in the light of decided cases. so far as its ratio decidendi is concerned. Judicial ruling is retrospective. A judge‟s decision in an earlier and similar case constitutes a precedent and may be binding depending on the hierarchy of the courts concerned. it is a court which is superior to his hierarchy. Judges are required to follow a system.

AMYLIA BINTI ISMAIL E. but the decision of the High Court is binding on the lower courts and not on the Court of Appeal and Federal Court. As the terms is generally employed. If a question is asked what government is.g. the decision of the Federal Court is binding on the other courts.11 THE LEGAL INSTITUTION YDPA Legislative Executive Judiciary Constitutional law is concerned with government in a state. 1. . and in the administration of internal policies. executive or judicial. we are likely to think of various official powers which are exercised over us or in short we can say they are the power organizing structure. the legislative activity involves the enactment of general rules for the individuals and groups in society. Finally the judicial function involves the determination of issues of fact and the interpretation of law and dealing with crimes or civil causes by the application of the law to them. In Malaysia it would be simple enough to classify the activities referred to the above as legislative. in the conduct of external affairs. but includes actions taken for the maintenance of order. in the implementation of the law. for the defense of the state. The executive function is harder to define.

but a political theory. The terms which we have been using. . applying law and enforcing law. The model was first developed by the ancient Greeks in the constitutions that governed their city-states. executive and judicial. It is also natural to use the terms because in many states there seem to be institutions whose primary functions correspond to one of these three kinds of activity. has become commonplace in the description of constitutional arrangements. The terms have been derived from a doctrine which was developed in the seventeenth centuries in England and this doctrine is commonly known as doctrine of separation of powers. But some of the activities which we would classify as executive. The three functions can be described as making law. It was outlined in theConstitution of the Roman Republic. For example it is the legislative power to increase income tax.AMYLIA BINTI ISMAIL Sometimes the three functions may be viewed as a combination or sequence. Executive action will is involve in the collection of the arrangements for the tax collection and the judicial proceedings may be involved when persons are found evading tax payment. Doctrine of Separation of Power The doctrine of the separation of powers is most often associated with French writer Baron de Montesquieu but it would be a mistake to think that he invented it. However. including the general conduct of foreign policy.The doctrine of the separation of power is not a legal principle. it first came into widespread use by the Roman Republic. whether it is under the influence of the doctrine or not. do not involve the execution of law at all. which categorizes the functions of government as legislative.

the magisterial. he distinguishes three elements in every constitution. It may also interpret the Federal Constitution and State Constitution. The High Court of Malaya and Sabah & Sarawak. Industrial Court and Court Martial. The general rule is that the Jurisdiction of the courts increases as one moves upwards . the Court of Appeal and the Federal Court are superior courts. and the judicial Judiciary hears and determines civil and criminal matters. In Aristotle‟s politics. There are also several specialised tribunals exercising judicial and quasi judicial functions eg. These courts provide an inexpensive and specialised means of settling disputes between the parties. and pronounces on the legality of legislative and executives acts. 1.AMYLIA BINTI ISMAIL The doctrine includes a proposition about the functions of government.12 THE LAGISLATIVE PROCESS IN THE MALAYSIAN PARLIAMENT The Bill introduced to parliament may be classified as: a) Private Bill‟s b) Private Member Bills c) Hybrid Bills d) Government Bills . which he classified as the deliberative. and discussion of the forms and functions of government may be traced back to ancient Greece.

The First Reading 2. At the end of the Second Reading. The Second Reading 3. hybrid bills or government Bills. At the first reading. The Third Reading To introduce a bill. requires to be seconded. it is required to give notice to the Clerk of the relevant House before which he intents to introduce it. This motion. moved by the Minister. The Committee Stage 4. Otherwise. the Bill cannot be presented. In effect. the House resolve itself into a Committee on the Bill. Bills may be classified as Private Bills.AMYLIA BINTI ISMAIL The Bill is normally presented by the Minister to the Parliament A Bill introduced in either House in accordance with Parliamentary procedure as prescribed by the Standing Orders usually goes through 4 stages: 1. There is a debate or amendment at this stage of the proceeding which are but a mere formality. the Bill is committed Committee of the whole House. It is as this stage that debate on the Bill is carried out. By the time this motion is move. private member‟s Bills. This is called a Committee Stage and it is intended to allow members the opportunity to . the Bill will have been printed and circulated to all members of the House. the Minister merely mention the title of the Bill and then proceeds to give oral notice as to when he wishes to move the Second Reading.

such a .AMYLIA BINTI ISMAIL discuss detail of the Bill and to propose amendment in a less formal proceeding. If the motion is accepted. the Minister move a motion to report the bill under consideration to the House. but such a move is unlikely to succeed unless it commands the support of the government. When a Bill has been passed in the manner describe above in either House. Constitutional amendment requires the concurrence of both chambers. However. the House will resume sitting and this brings the Committee Stage to an end. The motion is the final step and article 68 of the Federal Constitution will become operative. Bill may originate from either House with the exception of a Bill or and amendment concerning any of the matters enumerated in article 67. it is then transmitted or send to the other House for Consideration. this primacy of the House of Representatives over the Senate does not exist in the event of a Bill amending the Constitution. Although a Minister normally introduces a Bill. it is return to the House from which it originated. According to article 68. When discussion is completed in Committee. When the house resume sitting. The function of the Senate is general legislation is of a revising nature with no real authority to reject measures passed by the House of Representative. there is nothing to prevent any member either of the government or the opposition from introducing a Bill. the minister reports that the Bill has been considered and accepted by the Committee with or without amendment. the Bill may be presented to the Yang di-Pertuan Agong for his assent after the lapse of one month if it is a Money Bill and twelve months if it is not a Money Bill. When the has been considered by the other House in a similar fashion.

Bill are passed by the one-chamber by Legislative Assembly and assented to by the Ruler or Yang di-Pertua Negeri before becoming law.AMYLIA BINTI ISMAIL taxation and expenditure. There are several exception to this rules. The legislative procedure in the State Assemblies is almost similar to that in the Federal Parliament with some local variations.12.1 Voting A Bill is adopted by a simple majority vote of those members present and voting. which must be moved by a minister in the House of Representative. the most significant being constitutional amendment in accordance with article 159 of Federal Constitution. that is. The constitutional provisions affecting succession to the throne in the Malay State may not be the subjects of amendment by the State Legislature. and no law can come into force until it is published. Bill shall not been passed in either House of Parliament unless it has been supported on the second and third readings by the votes of not less than two-third of the total number of members of that House. supported on the second and third reading by at least two-third of the total number of members. State Constitution. Bills requiring expenditure from the Consolidated Funds have to be introduced by a member of the Executive Council. 1. . with certain exceptions may also be amended on the same format as an amendment of the Federal Constitution.

2 Royal Assent The Yang di-Pertuan Agong is an integral part of Parliament. After the Bill is passed at this stage. its text is printed and distributed. it is passed on for consideration by a committee of the house. His assent is normally before a Bill becomes law. If the report is approved. The committee then submits a report on the Bill to the house.AMYLIA BINTI ISMAIL 1. the Bill becomes law as if it had been assented. (4) Third Reading . there was no evidence to suggest that the Royal veto over a proposed federal law has ever been official existed. Royal Assent is not effect within a time specified. 1. only its title is actually read. Prior to the amendment. (2) Second Reading Members debate the Bill. (3) A Committee of The House Considers the Bill in detail and may amend any part of it. the Bills goes on to a third reading in the house. If accepted.3 SUMMARY ABOUT HOW A BILL BECOME A LAW (I) First Reading When a bill is first introduced in one of the two houses.12.12.

The house then either passes or defeats the Bills. where it follows a similar pattern. the Bill must be returned to the first house for it approval (6) Royal Assent When the Bill has passed both house with accordance with article 68. If the second house amend the Bill. or the Courts Judicature Act 1964 or by Subordinate Courts Act 1948 or by any other law presently in force. it is sent to Yang di. (5) Other House When a Bill has passed one house. The bill becomes a law upon publication.AMYLIA BINTI ISMAIL Debate takes place and amendments may be put to a vote.13 Jurisdiction of the Courts As a general rule civil and criminal courts are open to public. he will be tried in a court of competent jurisdiction. 1. it is send to other house. . When an accused person has committed a criminal offence and does not plead guilty. The court which administer civil and criminal justice are those constituted under the constitution.Pertuan Agong For the Royal Assent.

Criminal Section 88 Subordinate Courts Act 1948 2nd Class Magistrate can try offences punishable with: a) imprisonment not exceeding 6 months. Trail Jurisdiction. Sentencing Jurisdiction Section 96 Subordinate Courts Act 1948 The penghulu can impose fine not exceeding RM25/- 1. or b) a fine only . The Offender must be an Asian.AMYLIA BINTI ISMAIL 1.1 Penghulu’s Court.13. Section 95 Subordinates Court Act 1948 provides that : The Penghulu‟s court can try minor offences listed in the „Surat Kuasa‟ and punishable with a fine not exceeding RM 25/-.2 2nd Class Magistrate Trail Jurisdiction.13.

e. or c) both Civil Section 92 Subordinate Courts Act 1948 – monetary jurisdiction up to RM 3000.AMYLIA BINTI ISMAIL Sentencing Jurisdiction Section 89 Subordinate Courts Act 1948 2nd Class Magistrate can punish an offender with: a) imprisonment not exceeding 6 months. .e robbery on the highway between sunset and sunrise punishable with a maximum of 14 years imprisonment. or b) a fine not exceeding RM 1000. or d) under Section 457 Penal Code i. or b) punishable with fine only or c) under Section 392 Penal Code i.13. house breaking at night to commit theft punishable with a maximum of 14 years imprisonment.3 1st Class Magistrate Trail Jurisdiction Section 85 Subordinate Courts Act 1948 – 1st Class Magistrate can try offences: a) punishable with imprisonment not exceeding 10 years.00 1.

bail and transfer of the case to the sessions court. remand. or b) fine not exceeding RM 10. bail and transfer of the case to the sessions court d) to hold inquiries of death. Sentencing jurisdiction: Section 87 (1) Subordinate Courts Act 1948 1st Class Magistrate can punish the offender with: a) imprisonment not exceeding 5 years.AMYLIA BINTI ISMAIL Section 83 Subordinate Courts Act 1948 – 1st Class Magistrate can:a) issue warrants. or c) whipping up to maximum 12 strokes d) a combination of (a)-(c) e) in a civil matter the Magistrate can fine up RM 25. summons or other processes of the court c) make orders relating to adjournments. remand. b) make orders relating to adjournments. Section 9 Criminal Procedure Code gives power and authority to the Magistrate:a) to hear criminal trials b) to issue warrants. summons or other processes of the court.000/- .000/-.

000.Unlimited monetary jurisdiction in respect of motor vehicle accidents and landlord and tenants dispute and distress.13.AMYLIA BINTI ISMAIL Civil Section 90 Subordinate Courts Act 1948 – Monetary jurisdiction up to RM 25.4 Sessions Court Trail Jurisdiction Criminal Section 64 Subordinate Courts Act 1948 A Sessions court can try any offences except those punishable with death Sentencing Jurisdiction Section 64 Subordinate Courts Act 1948 can pas any sentence except death Civil a) Section 65(1)(a) Subordinate Courts Act 1948 .00 c) Section 66(1) Subordinate Courts Act 1948 – This Court may try matter even if a counter claim exceeds Plaintiff‟s claim but this court will not give judgement in .00 1. b) Section 65(1)(b) Subordinate Courts Act 1948 – On other matters monetary jurisdiction up to RM250.000.

The High court can try all matters except which is expressly excluded by the Federal Constitution. The High Court has the power to or make an order the matter to be transferred to the High Court.AMYLIA BINTI ISMAIL excess of the monetary jurisdiction limit . .5 High Court Trial Jurisdiction Criminal Section 22 Court Judicature Act 1964 .13. d) Section 66(2) Subordinate Courts Act 1948. Civil The High Court has no monetary limits and can try any case with any amount of money. 1.a High Court can try any offences and offences under Chapter VI of the Penal Court and under any written law Court may pass any sentence allowed by law including death.

we are compelled by law to have a birth certificate and an identity card etc What is justice? Justice refers to fairness or rightfulness. Amongst others. CLASSIFICATION OF LAW Law may be divided into : Public Law Private Law International 1. administrative law and criminal law. That‟s why we have open court system. (R= REX). . THE CONCEPT AND SOURCES OF LAW The word law is so difficult to define. In a murder case where Azizul murdered Samdan.AMYLIA BINTI ISMAIL INTRODUCTION TO MALAYSIAN LEGAL SYSTEM.Public Law Public law regulates the relationship between the citizen and the State. Public law is divided into constitutional law. However. Justice must not only must be done but seen to be done. particularly as it is used in many different ways. what is justice in Malaysia may not necessarily mean justice in other parts of the world. Therefore here Azizul has committed a crime which is against the State (King‟s law) – R v Azizul. Law performs various functions in society and its pervasiveness may impinge our lives. Example.

AMYLIA BINTI ISMAIL Constitutional Law – defines the structure of government and the right of individual under that government. Criminal Law – deals with acts or omissions which are offences against the State and for which the offender is liable to be tried and if found guilty. Eg. Tort. . Administrative law – regulates the duties and exercise of powers by administrative authorities. It includes contract. 2. Family Law. Private Law Private law deals with the relation between a citizen and another. Border. Azizul v Samdan. It is also known as Civil law. territorial waters etc. Land Law and commercial law in general.International Law Includes Private and Public International Law. Legal action may be commenced or initiated by individuals seeking for damage or compensation Example where Azizul and Samdan entered an agreement and Samdan breached the contract. 3. Public international law deals with relationship between states. will be punished according to the law. Here Azizul has a cause of action against Samdan.

Generally. Principles of English Law h. ( Dewan Negara & Dewan Rakyat). Federal and State Subsidiary Legislation f. Judicial Decision g. Islamic Law FEDERAL CONSTITUTION Malaysia has a written constitution unlike the United Kingdom. any law which is inconsistent with the Federal Constitution is invalid. System of law applicable to a marriage between 2 different nationals in a third country SOURCES OF LAW The main sources of law are:- a. repeal and make new constitution by way of two third majority vote of the both houses of Parliament.AMYLIA BINTI ISMAIL Private International law is concerned with the application of various national laws of the facts of a particular case involving two or more countries eg. The Federal Constitution is the supreme law of the land. Its law making power is limited by the provisions in the constitution. However our Parliament as a legislative body has the capacity to amend . Federal law made by Parliament d. The . the Federal Constitution b. The Malaysian Parliament functions under a written constitution and is governed by it. the 13 Constitution of the States comprising the Federation c. State laws made by State Assemblies e.

AMYLIA BINTI ISMAIL Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government. The government is headed by a Menteri Besar or a Chief Minister. In England Parliament is Supreme and has full power to make law on any matter. and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament‟ How far is this true after the signing of treaty of Rome in 1972? THE STATE CONSTITUTION The 13 States of Malaysia have individual constitutions which provide for a single chamber Legislative Assembly in each state. the right to make or unmake any law whatever. members of the Executive Council are known as State Ministers. under the English constitution. (In the Malay States the MB is assisted by a cabinet known as the Executive Council) In Sabah & Sarawak. namely that Parliament has. . According to Dicey: „ The Principle of Parliamentary sovereignty means neither more nor less than this.

Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently. commerce and banking were patterned on English Models (or in some instance other colonial laws) SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION Also known as delegated legislation. Many of the local laws especially those affecting trade. Examples: Act .AMYLIA BINTI ISMAIL LEGISLATION It refers to laws made by a person or body which has power to make law. . In Malaysia. The English Law is adopted so far as they were suitable to local conditions. ENGLISH LAW The legacy of English Law remains in Malaysia even after independence.Federal Law made by Parliament Enactment . laws enacted by a State Assembly only apply to that particular state only.State Law made by Legislative Assemblies Ordinance . Laws made by Parliament may extend to the whole country. An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments. However. A statute will confer power on an authority for it to enact rules and regulation. Parliament and Legislative Assemblies have powers to enact laws in their respective areas.

THE DOCTRINE OF JUDICIAL PRECEDENT Why do lawyers cite previous cases from thick volumes in their arguments before the court? The answer is because the common law is found in decision of the superior court. . which provides for consistency and certainty in decision. This system was inherited from England ISLAMIC LAW Applicable to Muslims only and administered in the Syariah Courts. The statute must be read in the light of decided cases. A judge‟s decision in an earlier and similar case constitutes a precedent and may be binding depending on the hierarchy of the courts concerned. The courts possess civil jurisdiction over offences by Muslim against the religion. Judges are required to follow a system.Judge made law.. What about Malaysia? Do we adhere to these principles of judicial precedent? Even when we have statutes.AMYLIA BINTI ISMAIL THE COMMON LAW Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative. we still look to the judges interpretation of the law. Judges lay down rules when giving the decisions and these rules are precedents which must be followed in similar cases.

but the decision of the High Court is binding on the lower courts and not on the Court of Appeal and Federal Court. Can a Federal Court Judge divert from a previous Federal Court decision ? FEDERAL COURT COURT OF APPEAL HIGH COURT OF MALAYA HIGH COURT OF SABAH & SARAWAK SESSIONS COURT MAGISTRATES COURT 1 MAGISTRATES COURT 2 JUVENILE COURT PENGHULU .AMYLIA BINTI ISMAIL Eg the decision of the Federal Court is binding on the other courts.

These courts provide an inexpensive and specialised means of settling disputes between the parties. The High Court of Malaya and Sabah & Sarawak. It may also interpret the Federal Constitution and State Constitution. Jurisdiction of the Courts Penghulu‟s Court. and pronounces on the legality of legislative and executives acts. . The Offender must be an Asian.AMYLIA BINTI ISMAIL The Judiciary hears and determines civil and criminal matters. Trail Jurisdiction. The general rule is that the Jurisdiction of the courts increases as one moves upwards . the Court of Appeal and the Federal Court are superior courts. There are also several specialised tribunals exercising judicial and quasi judicial functions eg. Industrial Court and Court Martial. Section 95 Subordinates Court Act 1948 provides that : The Penghulu‟s court can try minor offences listed in the „Surat Kuasa‟ and punishable with a fine not exceeding RM 25/-.

or c) both 1st Class Magistrate Trail Jurisdiction Section 85 SCA ‟48 – 1st Class Magistrate can try offences: a) punishable with imprisonment not exceeding 10 years.AMYLIA BINTI ISMAIL Sentencing Jurisdiction Section 96 SCA ‟48 The penghulu can impose fine not exceeding RM25/- 2nd Class Magistrate Trail Jurisdiction. or b) a fine not exceeding RM 1000. or . or b) a fine only Sentencing Jurisdiction Section 89 SCA ‟48 . Section 88 SCA ‟48 2nd Class Magistrate can try offences punishable with: a) imprisonment not exceeding 6 months. 2nd Class Magistrate can punish an offender with: a) imprisonment not exceeding 6 months.

e robbery on the highway between sunset and sunrise punishable with a maximum of 14 years imprisonment. bail and transfer of the case to the sessions court d) to hold inquiries of death. Sentencing jurisdiction: Section 87 (1) SCA „ 48: 1st Class Magistrate can punish the offender with: a) imprisonment not exceeding 5 years. or d) under Section 457 Penal Code i. Section 9 Criminal Procedure Code gives power and authority to the Magistrate:a) to hear criminal trials b) to issue warrants.AMYLIA BINTI ISMAIL b) punishable with fine only or c) under Section 392 Penal Code i.e.000/-. b) make orders relating to adjournments. summons or other processes of the court. or c) whipping up to maximum 12 strokes . bail and transfer of the case to the sessions court. remand. remand. Section 83 SCA „ 48 – 1st Class Magistrate can:a) issue warrants. house breaking at night to commit theft punishable with a maximum of 14 years imprisonment. or b) fine not exceeding RM 10. summons or other processes of the court c) make orders relating to adjournments.

a High Court can try any offences and offences under Chapter VI of the Penal Court and under any written law Court may pass any sentence allowed by law including death.AMYLIA BINTI ISMAIL d) a combination of (a)-(c) e) in a civil matter the Magistrate can fine up RM 25.000/- Sessions Court Trail Jurisdiction Section 64 SCA „ 48 A Sessions court can try any offences except those punishable with death Sentencing Jurisdiction Section 64 SCA „ 48 can pas any sentence except death High Court Trial Jurisdiction Section 22 Court Judicature Act 1964 . .

Early Law Early laws of the Malay states are recorded from the time of the Malaccan Sultanate which was largely influenced by Hindu. Kuala Lumpur. and agriculture are under the state law. European Colonialism By the sixteenth century. Malacca was a bustling cosmopolitan port. namely. land. A Malay Sultan during the Malacca era held absolute power and commanded absolute loyalty from his subjects. Putrajaya and Labuan. The federation has a central government. Important matters such as defense. administer justice and maintain law and order. The legislative and executive powers of the federation are divided between the central and state governments. The Sultan could declare war. external affairs and others are under the Federal Government and matters of local concern. attracting hundreds of ships each year. The traditional laws were generally unwritten and only customary in nature. The city was known worldwide as a centre for trade. and Islamic philosophy. decide on the life and death of his subjects. for example. this fame slowly ended when the Europeans began to extend their . Buddhist. mining.AMYLIA BINTI ISMAIL  Origins of Malaysian Law Malaysia is a federation of thirteen states and three federal territories. Unfortunately.

the merchants. beginning with the Portuguese. It is the highest law of our country and contains the fundamental rights of the citizen. The Dutch administration was headed by a governor and assisted by a council comprising of the mayor. However. The Constitution In Malaysia. like the Portuguese. the Dutch and later by the British. Dutch Administration The Dutch defeated the Portuguese and took over Malacca in 1641. we have a written constitution known as the Federal Constitution. a secretary and many others. A Dutch administration was immediately established. Portuguese Administration After the Portuguese captured Malacca in 1511. The Malay Sultanate of Malacca broke up with the coming of the Europeans into the region. Malacca was governed by a governor or captain. Their interest was in trade and not in political power. who lived outside the city walls.AMYLIA BINTI ISMAIL power into the East. a military and civil administration was established. . However the Portuguese authorities did not exert their influence over the communities. the Dutch were only interested in trade and never attempted to exert their political authority. The Federal Constitution of Malaysia was formally adopted on 31st August 1957.

 Other Sources of Law Common Law Common Law is the oldest form of law and derived from the English courts over many centuries. it becomes an Act which is also known as statute law. Since written law cannot address fully every aspect of the principles of law. right to equality. Statutes A statute is a formal and written law of our country.AMYLIA BINTI ISMAIL The Constitution guarantees our basic rights such as the right to life and liberty. right to education. right to property as well as freedom to practice one‟s religion. When Parliament passes a law. . The Malaysian legal system and its laws follow closely English Common law principals and also apply judgements and decisions by the English Courts in deciding a case. common law thus provides guidance on areas that are not covered by written laws. English colonialists brought common law principles into our country and these principles formed the foundation of our legal system.

for the natives of Sabah and Sarawak. particularly as a means of social control in remote communities and in the administration of estates. Legislation may expressly enact the . the Malays since then became Muslims and were governed by Islamic laws. adoption. The first is through legislation. However.AMYLIA BINTI ISMAIL Customary and Native Law Customary law is of little relevance to the communities in West Malaysia today. wills and other offences under the Islamic law International Law There are two methods by which international law may be incorporated into domestic law. they brought along with them Islam. The main source of Syariah law is from the Al-Quran. It covers matters such as marriage. Syariah Law in Malaysia applies only to Muslims and comes under the control of the Syariah Court. family law and inheritance and as well as the election of traditional ruling chiefs. divorce. Hadis and Sunnah. Syariah Law When the traders from the Arabian Peninsular and Gujarat (India) landed on the shores of Malacca in the fifteenth century. customary law remains an important source of law. When the Malacca Sultanate embraced Islam.

through the interpretation of domestic law. introduce principles of international law into the domestic system. As far as human rights are concerned. Courts may.AMYLIA BINTI ISMAIL terms of a treaty or convention to which Malaysia may be a party or it may impliedly do so by requiring domestic law to be interpreted in accordance with a treaty or convention. the most important international document is the Universal Declaration of Human Rights 1948 (UDHR) which was adopted by all members of the United Nations. The UDHR is the common yardstick to measure a nation‟s commitment to and respect for human rights standards . The second method is through the common law process.

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