You are on page 1of 5

Law and the Legal System

Function of law: protects basic individual rights and freedoms such as liberty,
freedom of speech and equality. In short, law seeks to attain justice in society
Def. of justice: Justice is an abstract idea of right and wrong, fairness and eq
Def. of law
The body of enacted or customary rules recognized by the community as binding-Ox
ford English Dictionary
The body of principles recognized and applied by the State in the administration
of justice..In other words, law consists of the rules recognized and acted on b
y the courts of justice.-Sir John Salmond in Jurisprudence
A command set by a superior being to an inferior being and enforced by sanctions
(punishments). The superior being is the State and the inferior being is the ind
ividual. The sanctions are wide and include imprisonment fines, damages, injunct
ions and decrees of specific performance.-John Austin in The Province of Jurispr
udence Determined.
Def of State
-legal systems that are administered on the basis of a political unit (internati
onal purposes)
Background: Malaysia is a federation state. A federation (Latin: foedus, foederi
s, 'covenant'), also known as a federal state, is a type of sovereign state char
acterized by a union of partially self-governing states or regions united by a c
entral (federal) government.
It is made up of 13 States and 3 Federal Territories-Kedah, Perlis, Kelantan, Tr
engganu, Penang and Province Wellesley, Perak, Pahang, Selangor, Negeri Sembilan
, Johore, Malacca, Sabah and Sarawak-and the Federal Territories of Kuala Lumpur
, Labuan, Putrajaya.
Malaysia is a federal constitutional elective monarchy. The federal head of stat
e of Malaysia is the Yang di-Pertuan Agong, commonly referred to as the King of
Malaysia. The Yang di-Pertuan Agong is elected to a five-year term among the nin
e hereditary Sultans of the Malay states.
Legislative power is divided between federal and state legislatures. The bicamer
al parliament consists of the lower house, the House of Representatives or Dewan
Rakyat (literally the "Chamber of the People") and the upper house, the Senate
or Dewan Negara (literally the "Chamber of the Nation")
Law in Malaysia
- Peninsular Malaysia, Sabah and Sarawak is one political unit but not governed
by the same set of laws.
Two areas that achieve a certain uniformity throughout Malaysia- The Parliament
that can and does legislate for the whole country and the Federal Court as a fin
al court of appeal for the whole country.
Malaysia has a written constitution (rules that lay down who shall govern and ho
w) called the Federal Constitution 1957. It is the supreme law of the Federation
Article 4(1) Federal Constitution states:
4. Supreme Law of Federation.
(1) This Constitution is the supreme law of the Federation and any law passed af
ter Merdeka Day which is inconsistent with this Constitution shall, to the exten
t of the inconsistency be void.
GR-laws enacted by Parliament which are inconsistent with the Federal Constituti
on may be declared void by the Courts by virtue of Article 4(1) FC
R.Rethana v. The Government of Malaysia & Another
Plaintiffs sought to declare that Sections 31 and 42 if Employees’ Social Securi
ty Act 1969(SOCSO)were inconsistent with the FC. Article 8(1) equal protection o
f the law for all persons and equality of all persons before the law. SOCSO prec
luded employees from suing their employers under the common law for damages for
injuries sustained in the course of employment.
Held: Plaintiff’s claim was dismissed as provision by SOCSO was fair and reasona
ble and thus, did not offend Art. 8(1) and hence, not void.
Cf Repco Holdings Bhd v. Public Prosecutor
Gopal Sri Ram J.C.A.
…a strong presumption that an Act of Parliament is constitutional. It would requ
ire much conviction to strike down a solemn act of legislation by a democratical
ly elected elected Parliament. Nevertheless, once it has been amply demonstrated
, …that an Act of Pt contains provisions that are in direct conflict with the su
preme law, it is the duty of this court to say so clearly and unequivocally.
Legislation in Malaysia
Legislative power is given to (1)Federal Parliament; and (2)each State by virtue
of Article 73.
73. Extent of Federal and State Laws
In exercising the legislative powers conferred on it by this Constitution:
(a) Parliament may make laws for the whole or any part of the Federation and
laws having effect outside as well as within the Federation;
(b) The legislature of a State may make laws for the whole or any part of th
at State.
Subject matter of legislation- Art. 74 FC
Parliament may make laws with respect to any of the matters enumerated in the Fe
deral List (List I) or Concurrent List(List III).
Mamat Bin Daud & Others v. Government of Malaysia
Petitioners were charged with an offence under S. 298A Penal Code for acting as
unauthorized Bilal, Khatib and Imam at a Friday prayer in Kuala Lumpur without b
eing duly appointed. Issue: Act of Parliament was enacted beyond the competency
of Parliament as religious matters are reserved for state legislature.
Held: S.298A is invalid and thus, null and void as Parliament has no power to ma
ke law on the subject matter of religion.
The State legislatures may make laws with respect of any matters enumerated in t
he State List (List II) and Concurrent List(List III).
Classification of Law
There are three broad divisions:
A) public law
B) international law
C) private law/civil law
(A) Public law is law that governs the relationship between individuals and the
State. It consists of two categories – a) Constitutional Law b) Criminal Law
a) Constitutional law: lays down the rights of individuals in the State. -Deals
with questions such as supremacy of Parliament and rights of citizens. -Covers a
reas dealing with state and federal powers.
b) Criminal law: lays down the offences committed by individuals against the Sta
te i.e. murder, theft, causing grievous bodily hurt. –imposes on individuals the
obligation not to commit crimes. A crime is a wrong against the State and thus,
proceedings are brought by the Public Prosecutor.
Elements of a crime 1)Mens rea (guilty mind) 2)actus reus (wrongful act)However,
there are certain statutory offences which eliminate the need to prove mens rea
(B)International law
International law refers to the body of law comprising of principles and rules t
hat govern the conduct of independent nations in their relationships with one an
a)Public International Law
-Law that prevails between States.
Public international law has four primary sources: international treaties, custo
m, general principles of law and judicial decisions and teachings.International
treaty law comprises obligations states expressly and voluntarily accept between
themselves in treaties. Customary international law is derived from the consist
ent practice of States accompanied by opinio juris, i.e. the conviction of State
s that the consistent practice is required by a legal obligation. Judgments of i
nternational tribunals as well as scholarly works have traditionally been looked
to as persuasive sources for custom in addition to direct evidence of state beh
b) Private International Law
Conflict of laws, often called "private international law" in civil law jurisdic
tions, is less international than public international law. It is distinguished
from public international law because it governs conflicts between private perso
ns, rather than states (or other international bodies with standing). It concern
s the questions of which jurisdiction should be permitted to hear a legal disput
e between private parties, and which jurisdiction s law should be applied, there
fore raising issues of international law. Today corporations are increasingly ca
pable of shifting capital and labor supply chains across borders, as well as tra
ding with overseas corporations. This increases the number of disputes of an int
er-state nature outside a unified legal framework, and raises issues of the enfo
rceability of standard practices.
(C) Private law/Civil law
It is a legal system that regulates the rights and duties of individuals among t
hemselves. There are three branches of private law. These are contract law, tort
and trust.
Contract- an agreement which is legally binding between the parties. Contract la
w is a branch of law that governs the rights and obligations that arise from the
agreement and determines whether these are legally enforceable.
1) Offer
2) Acceptance
3) Capacity to contract of both parties
4) Absence of mistake, misrepresentation, undue influence
5) Intention to create legal relations
6) Consideration
Tort- is an obligation imposed by law
1) General duty imposed by law (compare with contract law where obligations
arise from an agreement between parties)
2) Breach by act or omission done intentionally or negligently
3) Damage caused by act or omission which is not remote.
The essential elements of a tort are that there must have been an omission done
intentionally or negligently, and there must be damage caused by the act or omis
sion which are not remote.
Trust -equitable obligation binding a person (trustee) to deal with proper
ty over which he has control (trust property) for the benefit of persons (benefi
Sources of Malaysian Law
Def. of sources: the legal rules that make up the law in Malaysia
• Written law
• Unwritten law
• Islamic law
● Written law
It is the most important source of law. It may be found in the following places:
a)The Federal Constitution
b)State Constitution
d)Subsidiary legislation
a)The Federal Constitution
Malaysia is a Federation of thirteen States with a written constitution, which i
s the supreme law of the country. It lays down the powers of the Federal and Sta
te Governments and the basic rights of an individual. These rights can only be c
hanged by a two-thirds majority of the total numbers of members of the legislatu
b)State Constitutions
Besides the Federal Constitution which applies to all States in the Federation,
each State also possesses its own constitution regulating the government of that
Legislation refers to law enacted by a body constituted for this purpose. Laws a
re enacted by Parliament at federal level and by various State Legislative Assem
blies at state level.
Laws that are enacted by Parliament after 1946 but before Malaysia’s Independenc
e in 1957 are called Ordinances, but those enacted after 1957 are called Acts.
Laws made by Parliament and State Legislatures are subject to the provisions set
out in the Federal and State Constitutions. The subject-matter which Parliament
may make laws on is in List I of the Ninth Schedule while the State can make la
ws on matters enumerated in List II. Both Parliament and the State Legislatures
can make laws on matters on List III (Concurrent List). Matters not enumerated i
n any of the lists are within the authority of the State.
Legislature is used as a means of repealing, amending, enacting or codifying the
Subsidiary Legislation
The Interpretation Act 1967 defines it as ‘any proclamation, rule, regulation, o
rder, notification, by-law or other instrument made under any Ordinance, Enactme
nt or other lawful authority and having legislative effect’.
Subsidiary legislation deals with the details which legislature has neither the
time nor the technical knowledge to enact laws. Legislature lays down the basic
laws, leaving the details to persons or bodies to whom they delegate their legis
lative powers i.e. YDPA, Ministers, local authorities.
Subsidiary legislation that contradicts a parent Act or the Constitution is void
. An exception to this rule is the proclamation of emergency under Article 150 o
f the Federal Constitution. In Eng Keock Cheng V, Public Prosecutor, the Federal
Court held that subsidiary legislation may still be valid, notwithstanding that
it is inconsistent with the Constitution.
● Unwritten Law
It is that portion of Malaysian Law which is not written i.e. law which is not e
nacted by Parliament of the State Assemblies and which is not found in the writt
en Federal and State Constitutions. It is found in cases decided by the courts,
local customs etc.
English law
-which can be found in the principles of English common law and rules of equity
and that is applicable to local circumstances.
Historical background: English common law is a system of accepting and deciding
cases based on principles of law shaped and developed in preceding cases which E
ngland’s courts developed. In its broadest sense, equity means fairness. Rules o
f equity as said to “mitigate the rigor of common law”. Plaintiffs who felt just
ice was denied them, turned to the king who in turn refer them to the royal cour
t of Chancery to get relief. The head of the Chancery is a chancellor who settle
disputes and order relief according to his conscience. The decisions of a chanc
ellor made without regard for the common law, became the basis for the law of eq
uity. Renowned seventeenth-century judge John Selden noted that results in equit
y cases might well depend on the size of a chancellor’s foot.
In modern practice, the distinction between law and equity is the set of remedie
s each offers. A civil remedy from a court of law is usually monetary damages. E
quity relief can be in the form of injunctions or decrees directing someone eith
er to act or to refrain from acting. In general, equitable relief will only be g
ranted if there is “no adequate remedy at law”. In order to invoke equity, it mu
st be shown that monetary damages are an insufficient remedy for the injury. Whe
ther to grant equitable relief is left to the discretion of the judge. By contra
st, a plaintiff is entitled to monetary damages in civil actions.
Application of English law in Malaysia
Section 3(1) Civil Law Act 1956 provides that, in Peninsular Malaysia, the court
s shall apply the common law of England and the rules of equity as administered
in England on the 7th day of April, 1956. In Sabah and Sarawak, the courts shall
apply the common law of England the rules of equity, together with statutes of
general application, as administered or in force in England on the 1st day of De
cember 1951 and the 12th day of December 1949 respectively.
The application of English law in Malaysia is subject to two limitations:
1 It is applied only in the absence of local statutes on the particular subject.
Local law takes precedence over English law as the latter is meant to fill gaps
(lacuna) in the local system.
2 Only that part of the English law that is suited to local circumstances will b
e applied as stated in Section 3(1) of the Civil Law Act 1956. The reason for th
is proviso is that, in a nation of diverse races practicing a variety of customs
and religions, importing the law of England in its entirety would mean the sove
reignty of local race is affected.
Judicial Decisions- judicial decisions of superior courts, namely, the High Cour
t and the Supreme Court.
Judicial decisions are based on ‘doctrine of binding precedent’. Precedents are
decisions made by judges previously in similar situations. The functioning of th
e system of precedent is based on the hierarchy of courts. The general rule is t
hat decisions of higher courts bind lower courts and superior courts are bound b
y their own decisions.
There are two kinds of precedents:
Declaratory precedent- when a judge applies an existing rule of law without exte
nding it.
Original precedent-if a case comes before a judge without precedent and he makes
a decision. In this way, judges are constantly contributing to the growth of un
written law in this country.
1 More practical as the law evolved through actual experiences and is not a resu
lt of abstract theory.
2 More flexible compared to statute law as the enactment and amendment processes
are cumbersome and time consuming.
3. Case law is richer in legal detail than statute law.
1 As the number of cases decided can only increase, authorities may be overlooke
d in advertently.
2 Difficult to tell whether a particular statement in a judgement is ratio or di
Customs-customs of the local inhabitants which have been accepted as law by the
Generally, customs relating to family law, for example, marriage, divorce and in
heritance, are given legal force by the courts. Adat applies to Malays. With the
enforcement of the Law Reform (Marriage and Divorce) Act 1976 and various legis
lations on inheritance, Chinese and Indian customs have little or no importance
as a source of law in Malaysia.
● Islamic Law
It is only applicable to Muslims. State legislatures have the power to make Isla
mic law pertaining to persons professing the Islam religion. Laws are administer
ed by a separate court systems, the Syariah Courts. The head of the Islam religi
on in a state is the Sultan.