MALAYSIAN LEGAL SYSTEM

Definition of law

There are numerous definitions of law.

• Oxford dictionary – the body of enacted or customary rules recognised by a

community as binding.

• In his book entitled ‘Jurisprudence’, Sir John Salmond defined law as “the body of
principles recognised and applied by the state in the administration of justice”.

• In his seminal book, The Concept of Law [1963], the eminent jurist Professor
H.L.A Hart opined that law is one of the “few questions concerning human society
that have been asked with such persistence and answered by serious thinkers in
so many diverse, strange, and even paradoxical ways”.

• John Austin (jurist) opined that law is a command set by a superior entity
(known as the State) to an inferior entity (i.e. the individual) and enforced by
sanctions, which would include imprisonment, fine and damages.

The role of law

Why do we need law?

a) Maintaining order and peace in a country

b) Resolving Disputes among citizens which includes civil and criminal disputes

c) Protecting fundamental Liberties and Rights of citizens

d) Protects the victims of the breach of law and punishes those who breach it.

Classification of Law

There are three main classifications of law, i.e.:

❖ Public law
❖ Private law
❖ International law

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 • What is Public law?

Public law refers to areas of law that govern the relationship of the general public with
the state.

❖ Constitutional law – defines and regulates the structure of the government, and
the functions and relationships between the various government organs. The
focus of Constitutional law is on the supremacy of Parliament, the state or
Federal powers and the rights of the citizens.
❖ Administrative law – refers to powers and duties of Federal and State organs
(eg. state municipal council) in relation to the public.
❖ Criminal law – refers to the relationship between the state and the individual
that has committed a criminal act.

• What is Private law?

Private law is commonly referred to as Civil Law and relates to the rights of individuals
amongst themselves. Example of Civil laws is Contract Law, Law of Tort, Family Law
etc.

❖ Law of Tort

Torts are wrongdoings that are done by one party against another. As a result of the
wrongdoing, the injured person may take civil action against the other party. To
simplify this, let's say while walking down the aisle of a grocery store, you slip on a
banana that had fallen from a shelf. You become the plaintiff, or injured party, and the
grocery store is considered the tortfeasor or defendant, the negligent party.

❖ Contract Law

Body of law that governs oral and written agreements associated with exchange of
goods and services, money, and properties.

❖ Family

Area of the law that deals with family matters and domestic relations, including:
marriage, civil unions, and domestic partnerships; adoption and surrogacy. child abuse
and child abduction.

Legal action in civil matters can be initiated by any individual who feels that his rights
have been invaded or breached by another individual or group or organisation. The
party who initiates a civil action is referred to as the Plaintiff and the party being sued is
referred to as the Defendant.

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 Criminal Cases
Criminal cases deal with offences against the state, or society as a whole. So even though
one person might murder another person, murder itself is viewed as an offence to
everyone in society, because it goes against public codes of behaviour and the laws that
govern these. In criminal cases, the government prosecutes individuals for violating
these laws (for committing a crime) and sets a punishment.

Civil Cases
Civil cases don’t involve criminal law. They usually address a dispute between two
people, or a person and an organisation, to seek redress for a private wrong. A civil case
usually begins when one person or business (the “plaintiff”) claims to have been
harmed by the actions of another person or business (the “defendant”) and asks the
court for relief by filing a “claim” and instituting a court case. The aim is usually to get
damages – money as compensation for any harm suffered – but you can also begin a
civil case to get an interdict or other orders.

Examples of civil matters include:

• Personal injuries from a car accident or at work

• Damage to your property (car, house or personal items)
• Disputes with neighbours
• Breach of contract

Difference between civil and criminal proceedings

Unlike the aim of the criminal proceedings, which are punitive in nature and therefore
penalty ranges from fines to jail sentences and sometimes even capital punishment; in
Civil proceedings, the parties are either restored to their original positions or a penalty
in the form of damages is imposed.

• What is International law?

International law generally relates to the relationship between one government and
another government in matters relating to territorial jurisdiction, taxes or other
commercial and jurisdictional matters.

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SOURCES OF MALAYSIAN LAW
The main sources of Malaysian legal system law are Written and Unwritten law and Islamic Law.

SOURCES OF
MALAYSIAN
LAW

Written Law Unwritten Islamic Law

Law

Federal State Subsidiary Judicial

Constitution Constitution Legislation English Law
Legislation Precedent Customs

In Malaysian Legal System, the most important source of law is the Written Law
which comprises of The Federal Constitution, State Constitutions, Legislations (Acts
passed by the Parliament) and Subsidiary Legislations.

Malaysian law is derived from both written and unwritten sources. Sources of written
law comprise the following:

• Federal Constitution

The Federal Constitution is the most supreme law of the country and it lays down the
powers of the federal and state governments as well as the basic or fundamental rights
of the citizens.

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Federal constitution vests the legislative authority of Malaysia in Parliament.

IMPORTANT FEATURES OF MALAYSIAN PARLIAMENT

➢ The Parliament of Malaysia is the national legislature of Malaysia, based on

the Westminster system. The bicameral parliament consists of the Dewan Rakyat
(House of Representatives) and the Dewan Negara (Senate).

➢ The Yang di-Pertuan Agong (King) as the Head of State is the third component of
Parliament

Role of the Yang di-Pertuan Agong.

• He serves as the Head of State.

• He acts on the advice of the Cabinet or the Prime Minister. He has only nominal
powers and not real powers.
• He appoints the Prime Minister and on the advice of the Prime Minister he
appoints the Cabinet Ministers.
• He is the Supreme Commander of the armed forces of Malaysia.
• He has discretionary powers to withhold consent to a request for the dissolution
of parliament.
• He opens, adjourns and dissolves parliament on the advice of the Prime minister.

➢ The house of Senate consists members, elected by State Legislative Assembly to

represent 13 states and members appointed by Yang di-Pertuan Agong on the
advice of the Prime Minister.

➢ Role of the Senate (Dewan Negara) in Malaysia.

• The Senate is an advisory, revising/review chamber (dewan semakan). It

scrutinises legislation sent to it by the lower house and suggests amendments
and refinements.
• It represents the interests of the 13 states and the interests of the nation as a
whole.
• It also acts as a forum for debate and discussion on national policies and issues
and global affairs.

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 • It is less powerful than the Dewan Rakyat – it can only delay but not veto
legislation passed by the Dewan Rakyat. According to Article 68 (2) (b) of the
Federal Constitution, the Senate’s power to delay a Bill passed by the Dewan
Rakyat cannot exceed one year.
• It can initiate any legislation except bills concerning raising of taxes and money
for implementing the programmes and activities of the government.
• It has the special role of safeguarding the constitution and the individual liberties
and rights as they are appointed on the basis of their expertise and experience in
commerce, industry, agriculture, culture, social service or as representatives of
minorities or aborigines.
• It has not much power/influence over money bills such as the budget or taxation
proposals.

➢ The House of Representative (Dewan Rakyat) has primacy over the House of
Senate (Dewan Negara) in composition and function. The House of
Representative consists of members elected by adult suffrage (right of citizens in
a given society who are entitled to vote in an election.

Other important aspects of the Federal Constitution:

✓ Following the federal system of government, the 13 states are controlled by a central
government commonly referred to as the Federal government. The Yang Di-Pertuan
Agong is the constitutional Monarch and head of the country.
✓ The Federal Constitution can be amended on condition that two-third of the
members from both Houses of Parliament agrees with the amendment.

• The State Constitutions.

Each of the 13 states of Malaysia has its own State Constitution. These contain
provisions pertaining to state matters as provided under the Federal Constitution. The
State Constitutions deal largely with land matters, agriculture, forestry, local
government and Islamic law.

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• Legislation.
This comprises the laws passed by Parliament as well as the State Legislative
Assemblies. The laws passed by Parliament since 1957 (i.e. after Malaya’s
independence) are called ‘Acts’ while those passed by the State Legislative
Assemblies are called ‘Enactments’. In Sarawak, its referred to as ‘Ordinances’.

The term “Ordinance” in the present context also refers to laws made by the King (Yang
Di-Pertuan Agong) during a proclaimed emergency, when Parliament is not in session.

• Delegated legislations (subsidiary legislations)

Legislations passed by other bodies upon delegation of powers by the Parliament.
.

The ADVANTAGES of delegated legislation are the following:

• Delegated legislation can be passed very quickly and is more flexible. This is because
it does not have to undergo the various stages of procedure which has to be followed
in Parliament or the State Legislative Assemblies. Similarly, if the need arises,
subsidiary legislation can be just as speedily amended or even rescinded to meet the
changing needs of society.

• Delegated legislation deals with the detailed rules necessary to implement the law.
As Parliament does not have sufficient time to deal with such minute details,
delegated legislation is the more efficient way to fulfil this need.

• Some matters require the special skill and knowledge of experts in that area.
Parliament itself may not have sufficient experts for this purpose. Thus, delegated
legislation fulfils this need as well.

DISADVANTAGES of delegated legislations.

• The growth of delegated legislation goes against the doctrine of separation of

powers. This is because law is not being passed by persons elected for that purpose
(i.e. the legislature). Instead it is being passed by officers of government
departments.

• Parliament is unable to effectively supervise the making of delegated legislation due

to lack of time. As a consequence, many rules and regulations may have been
passed without proper consideration of some very important factors.

• There is always the risk that a delegated body may exceed the authority delegated
to it due to lack of parliamentary control

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Unwritten Law

Unwritten law is simply that portion of Malaysian law which is not being enacted by
Parliament or the State Assemblies and which is not found in the written Federal and State
Constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as common law. The unwritten law mainly comprised of
the English law, judicial decisions and custom.

Unwritten law comprises the following:

• English law (common law and equity)

Some laws in England have become part of Malaysian laws due to historical reasons

This is also a very important source of Malaysian law. Sections 3(1) and 5(1) of the
Civil Law Act 1956 specifically permit the reception of English common law and
equity in Malaysia subject to the limitations contained therein. However, the
reception of English law and equity are subject to certain general exceptions. In
particular,

English law may only be applied where

✓ there is no local law governing the matter and (Section 5)

✓ if it is suitable to the local circumstances.(section 3)

NOTE: in Peninsular Malaysia or any part thereof, apply the common law of
England and the rules of equity as administered in England on the 7 April 1956

It is also interesting to note that although Section 3, Civil Law Act 1956
allowed the use of common law and rules of equity which being administered
in England until 7 April 1956 and other dates for Sabah and Sarawak, the
judges are still allowing the use of common law cases which being developed
after 7 April 1956 to be used as reference in Malaysian court.

• Customs.
This refers to the customs of the local inhabitants which have been accepted as law. It
mainly relates to family matters, e.g. marriage, divorce and inheritance. Generally, the
customs of Chinese and Indians relating to marriage and divorce are no longer of much
importance since the passing of the Law Reform (Marriage and Divorce) Act 1976,
which abolished polygamous marriages among them. However the customary laws of
the Malays (also called ‘adat’ law) and in East Malaysia, native customary law, continue
to be important sources of law.

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• Judicial precedents.

These are informally referred to as judge-made laws and it refers to laws laid down by
judges in the superior courts in Malaysia.

Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the
decisions of the higher courts must be followed by the lower courts in similar
cases.

This practice is referred to as binding precedent or the Latin term ‘stare decisis’.

How does this doctrine work?

For an example a case is brought before the High Court on the charge of rape. During
sentencing, although the legislation provides the maximum sentence for imprisonment
and whipping, the High Court will have refer to the decisions that were passed
previously on similar facts by the Court of Appeal or Federal Court.

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The advantage of using this doctrine is that it provides:

❖ Precision: Case law contains a wealth of law which assists in the resolution of the
innumerable legal problems arising in different branches of the law. Reliance on statute
alone would be insufficient. Statute could never cater for the multiplicity of legal problems
brought before the courts. As the principle of the law is set out in cases the law therefore
becomes very precise and reliable.

❖ Legal certainty: Litigants have confidence in the future course that the court will take in
resolving legal problems of a similar nature. This is because the judge is bound to adopt
precedents in similar matters previously decided by a court of correct standing

❖ Consistency and Fairness - similar cases are dealt with in same way

❖ Time –saving – saves time as no drafting and passing laws

The disadvantage of the doctrine of judicial precedent is that:

❖ There is rigidity and it will be difficult for the law to develop and progress.
❖ Bulk and complexity:- The vast number of reported cases makes it difficult to
learn and apply the law.
❖ Injustice - The strict rules of judicial precedent can create injustice in individual
cases as each case may be different in its own way.

Case law or precedent may comprise res judicata, ratio decidendi or obiter dictum. The doctrine
of res judicata provides that once a lawsuit is decided, the litigants are prevented from raising
the same issue as well as matters that should have been litigated in the earlier suit unless
material raw evidence has become available. It must be noted that it is actually the ratio
decidendi that binds future courts.

✓ The ratio decidendi refers to the rationale or principle of law on which the
decision is based.

✓ The obiter dictum refers to opinions or other matters expressed by the judge,
which are not directly relevant to the case before him.

✓ Original precedent arises as a result of a judge making a decision in a case in

the absence of any precedent or law

✓ Declaratory precedents are those which do not lay down a new rule of law but
only declare a principle of law already existing.

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Islamic Law

Islamic law is applicable only to Muslims and administered in the Syariah Courts.
Except for the federal territories of Kuala Lumpur and Labuan, the powers to administer
Islamic law are primarily that of the States.

The Syariah Court is a state court established by state law whereas the ordinary civil
courts are federal courts. The Syariah Courts has its own hierarchy.

The Malaysian Government System

The Malaysian government system is known as a constitutional monarchy system,

based on the Westminster parliamentary system where the monarch is the symbolic
head of state and the country is governed by a government which consists of
democratically elected representatives.

Three arms to the Malaysian Government representing the principle of

separation of powers:

LEGISLATURE

• It consists of – the parliament which consists of the Dewan Negara (Senators)

and Dewan Rakyat (Members of Parliament)

• The most important function of the legislature is to enact various laws that
govern a nation. This is known as rule-making or law-making. The legislature
introduces, amends or replaces laws which have become obsolete.

EXECUTIVE

• It consists of the head of state, the head of government, the cabinet ministers and
the public agencies and departments under their control.
• The Executive is the second branch of the government responsible for the
enforcement of the laws enacted by the legislature.

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JUDICIARY

• The judiciary, also known as the judicial system, is a system of courts of law for
the administration of justice in a state. It consists of the judges and the superior
and subordinate courts.
• It is responsible for the administration of justice in a state.
• It hears and decides disputes and cases according to the rules of procedure and
evidence.
• It interprets laws, including the constitution, statutes and regulations.
• It also makes law in a limited sense. When the provisions of the existing law are
ambiguous or when two or more laws of a country are in conflict under a given
circumstance, the judiciary can determine what the law is and which shall
prevail. This is called “judge-made law.”

In simple terms, the functions of:

• the legislature – to make laws;

• the executive – to administer the country; and
• the judiciary – to interpret law and administer justice for the people.

A democratic government is based on the Doctrine of Separation of Powers as each

branch of the government has its’ distinctive powers and functions and no one branch
has absolute authority. This is to ensure ‘check and balance’ between each organ of the
government as well as avoid monopoly of authority and corruption.

Note: in Malaysia (similar to the UK) there is no separation of powers between the
legislature and the executive as the party that obtains the majority in the Dewan
Rakyat, will form the members of the executive. However, the separation of powers is
maintained by not allowing members of the Legislature and Executive to be a member
of the Judiciary and vice versa. This is expected to allow the independence of the
Judiciary

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The Legislative Process

PROCEDURES FOR ENACTMENT OF AN ACT

In Malaysia, there are the lower house known as the Dewan Rakyat or House of
Representatives and the upper house known as the Dewan Negara or Senate. The
Parliament will exercise its power to make laws by the passing of Bills in both houses.

A Bill may originate in either of the House. However, there is one exception with the
"Money Bill". Subject to Article 67 of the Federal Constitution, the "Money Bill" must
originate in the House of Representatives and can only be introduced by a Minister.

In the Westminster system (and, colloquially, in the United States), a money

bill or supply bill is a bill that solely concerns taxation or government spending (also
known as appropriation of money),

The House, which a Bill is originated, shall send it to the other House once the Bill has
been passed. After the other Houses passed the Bill, it must then be presented to the
Yang di-Pertuan Agong for his assent under the Article 66(3) of the Federal
Constitution.

THE PROCESS

• First Reading – a Bill is formally introduced in printed form and read to the
members of the House;
• Second Reading – the House will debate on the Bill and pass it to the Committee
Stage;
• Committee Stage – the issues raised during the debate will be analysed and
amendments will be made if necessary
• Third Reading – the Bill will be put to vote. A simple majority is will allow the Bill
to be passed. The same process is repeated in the Senate if the Bill was tabled in
the Dewan Rakyat. Note if the Bill is rejected at the Senate, it will be sent back to
the Dewan Rakyat to go through the whole process again.
• Royal Assent – Once the approval of both Houses obtained, it is presented to the
Yang Di-Pertuan Agong for Royal Assent. It is now an Act of Parliament.
• Gazette – For the Act to come into force (or take effect) it has to be Gazetted (i.e.
published in the government gazette). The date the relevant Minister gazettes
the Act is known as the date the law comes into force.

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Statutory Interpretation

Only the Parliament can make laws. As the third arm of the government, the judiciary
has the authority and responsibility to interpret the law. However, through the process
of interpreting and establishing the principles of law through this interpretation
process, judgments of the court are known as ‘judge made law’.

Therefore, the process of interpreting the statute (or statutory interpretation) is an

important process.

Do judges make law?

Judges make law in two ways.

❖ Firstly when judges interpret the law, they give meaning to the words used in the
statute. By doing so judges are actually making law.
❖ Secondly, when a case comes before the court and there is no Act of Parliament
for the judge to rely one, so he has to find the law.

How does he find the law?

By finding the principle of law in a case base on the facts presented before the judge. In
doing so he pronounces the law or the principle of law that would solve the problem.

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Judges use the rule of language to interpret the statute or legislation.

The Rules of Language

The Literal Rule

This rule, which is the most often used rule, was first laid down in the English case of Sussex
v Peerage. The duty of the court is to interpret the words in the statute by giving the word or
words used its ordinary or literal meaning.

The Golden Rule

This rule was established in the case of Grey v Pearson. The rule presumes that a mistake has
been made in the wordings of the Act or statute and the judge may modify the language
used in the statute to overcome the defects of the Act which have resulted in absurdity

The Mischief Rule

Mischief Rule is where sometimes the words in the statute are ambiguous i.e. it can be
interpreted in more than one way or in more than one meaning.

When using the mischief rule, the judge will look back to see which mischief (gap or fault in
the law) Parliament intended to fix by passing the statute.
(What was the law before the statute was passed?) It does not look at the meaning of the Act
today and hence it is seen as backward looking.

The Purposive Rule / Approach

When using the purposive approach, rather than looking at the state of the law before the
statute was passed as used in the mischief rule, the judge will instead look forward to see
what outcome Parliament hoped to achieve by passing the statute. Here the judge may have to
look at the overall intention of the legislature by reading the whole statute.

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Judicial System in Malaysia

The Hierarchy of the Courts

Federal Court

Court of
Superior
Appeal
Courts

Subordinate High Court of High Court of

Malaya Sabah & Sarawak
Courts

Sessions Sessions

Court Court

Magistrates Magistrates

Court Court

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COURT SYSTEM IN MALAYSIA

• The Federal Court stands at the apex of the Malaysian court system. It is headed by
the Chief Justice.

• Below the Federal Court is the Court of Appeal. This court is headed by the President
of the Court of Appeal.

• Below the Court of Appeal are two High Courts with co-ordinate jurisdiction. One is
the High Court of Malaya which serves Peninsula Malaysia, while the other is the
High Court of Sabah and Sarawak, which serves East Malaysia, i.e. Sabah and
Sarawak.

• Each of the High Courts is headed by a Chief Judge.

• Below the High Courts are the Subordinate Courts, the highest of which are the
Sessions Courts, each of which is presided by a Sessions Court Judge.

• Below the Sessions Courts are the Magistrates’ Courts, each of which is presided
over by a magistrate.

Having a court system with a hierarchy of courts has the following advantages:

✓ It facilitates a system of appeals. The court hierarchy distinguishes between

higher and lower courts so that persons who are dissatisfied with the decision of
a lower court have an avenue to have the decision reviewed by a higher court.

✓ It facilitates the application of the doctrine of binding judicial precedent which

requires the lower courts to follow the decisions of the higher courts, thus
achieving greater uniformity in the application of the law.

✓ It facilitates specialisation in the judicial process. The higher courts which are
presided by more senior and experienced judges handle the more serious
criminal offences such as murder, and kidnapping and more serious civil matters
where larger sums of money are involved. The lower courts are left to handle the
less serious offences and civil disputes involving smaller amounts of money.

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Note also that there are also other courts in Malaysia but they are not part of this
hierarchy, for an example:

• Syariah courts – to hear family and estate matters involving Muslims;

• Family court – to hear divorce, maintenance and child custody matter that
involve non-muslims;
• The Court for Children, previously known as the Juvenile Court, hears cases
involving minors except cases carrying the death penalty, which are heard in
High Courts instead. Native court – to hear customary matters involving the
indigenous natives of Sabah & Sarawak
• Special court – to hear matters involving members of the Royal family

The Federal court, Court of Appeal and the High Courts are superior courts, while the
Sessions and Magistrates courts are subordinate courts

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