Malaysian Legal System

MALAYSIAN
LEGAL SYSTEM
The Coat
of Arms
Jata Negara
Malaysian Legal System 2

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of
Malaysia

 The Dutch and Portuguese were the earlier colonial powers of
Malay Peninsula. However, the British ruled Malaya for more than
150 years with only one short interruption during World War II.
The Malay states at that time were divided into 3 groups of states:
 Straits Settlement (Negeri-negeri Selat) - Penang, Malacca &
History Singapore
 Federated Malay States (FMS) (Negeri-negeri Melayu Bersekutu) -
Perak, Selangor, Negeri Sembilan & Pahang
 Unfederated Malay States (UMS) (Negeri-negeri MelayuTidak
Bersekutu) - Johor, Kedah, Perlis, Terengganu & Kelantan

 27 August 1957 - The first Federal Constitution of Malaya (before it
is called Malaysia)
 31 August 1957 - Independence Day.
 16 September 16 1963 – formation of Federation of Malaysia.
History Consists of 11 states of the Federation of Malaya, 2 former
colonies of Sarawak and Sabah & State of Singapore.
 In August 1965 - Singapore seceded from this federation to
become an independent republic.

The Federation of Malaysia consists of 13 states:
 11 of the states are located in the Peninsular Malaysia (West
Malaysia)
 2 states in the Borneo Island (East Malaysia)
Federation  Each states have its own government
of
Malaysia The Federal Territories consists of 3 regions:
 W.P. Kuala Lumpur - Dewan Bandaraya Kuala Lumpur
 W.P. Labuan - Perbadanan Labuan
 W.P. Putrajaya – Perbadanan Putrajaya

What is a federal territory?
 A federal territory is a district under the control of the federal

Federation government rather than a state government
of Malaysia  Kuala Lumpur became a federal territory on 1 Feb 1974. Labuan in
1984 and Putrajaya in 2001
 All three territories are under the control of the Ministry of Federal
Territories

 On 31 August 1970, Rukun Negara was introduced following the 13
May 1969 incident which weaken unity among the races in
Malaysia
Rukun MAKA KAMI, rakyat Malaysia, berikrar akan menumpukan seluruh

tenaga dan usaha kami untuk mencapai cita-cita tersebut
Negara berdasarkan atas prinsip-prinsip yang berikut:
(National  Kepercayaan kepada Tuhan
Principles)  Kesetiaan kepada Raja dan Negara
 Keluhuran Perlembagaan
 Kedaulatan Undang-undang
 Kesopanan dan kesusilaan

National Principles in English
NOW THEREFORE, we, the people of Malaysia, pledge to

Rukun concentrate our energy and efforts to achieve these ambitions
based on the following principles:
Negara
 Belief in God
(National  Loyalty to the King and Country
Principles)  Supremacy of the Constitution
 Rules of Law
 Courtesy and Morality

 The body of enacted or customary rules recognized by a
community as binding
WHAT Sir John Salmond, Jurisprudence:

IS  The body of principles recognized and applied by the State in the
administration of justice … law consists of the rules recognized
LAW? and acted on by courts of justice

 Law is generally the procedures and the rules of conduct or act
which one uses one’s every senses in order to harmonize the
convenient of oneself and/or another
WHAT Article 160(2) of the Federal Constitution:

IS  “Law” includes written law, the common law in so far as it is in
LAW? operation in the Federation or any part thereof, and any custom or
usage having the force in the Federation or any part thereof

 Law may be defined as a body of rules and regulations which are
developed and enforced by the government or authorities to deal
with crime, business arrangements and social relationships
WHAT
 Law is typically administered through a system of courts in which
IS judges hear disputes (argument/disagreement) between parties
LAW? and apply a set of rules in order to provide an outcome that is just
and fair

 The manner in which law is administered is known as a legal
system, which typically has developed through tradition in each
country
 Most countries rely upon the police to enforce the law: to issue
legal warnings, execute search or other legal warrants and to
WHAT make arrests
IS
 Law is sometimes based on the concept of “fault”. E.g. passing of
LAW? sentences in criminal cases and award of damages in civil cases

 Some acts are considered immoral but do not necessarily illegal.
 In Islamic law, adultery (“zina”) is an offence.
LAW &  In non-Muslim marriages, adultery is one of the facts that the
MORALITY court will consider in deciding that the marriage has irretrievably
broken down in a petition for divorce by mutual consent.
 Some acts are illegal and immoral. Example, murder.

 To attain justice
 To encourage the doing of what is right or just in a particular set of
circumstances
 To govern, to regulate, to control the conduct of the people and
FUNCTIONS organizations in a community, society or nation
 To protect and preserve the safety and well-being of the society
OF from those who would threaten it
LAW  To punish the guilty with aims of retribution, deterrence and
rehabilitation
 To strike a true balance in the scale of justice by providing
remedies

PER CONTENT PER SOURCES PER
Historical sources
ENFORCEMENT
Substantive law • Customs Public Law
• Trade Usage • Constitutional & Administrative Law
• Authoritative Opinions • Criminal Law
Classification Procedural law Source of Reference

• Statute (Act)
Private (Civil) Law
• Contract Law
• Law Reports/Journals
of Law •
•
Authoritative Text
Judgements
•
•
Tort Law
Sale of Goods Law
• Company Law
• Property Law
Legal Sources
• Written Law (Federal Constitution,
State Constitution, Legislation, International Law
Subsidiary Legislation) • Public
• Unwritten Law (Applicable English International Law
Law, Judicial Decision, Customary • Private
Law International Law
• Syariah Law

 Contract law
 Tort Law
 Criminal Law
CATEGORIES Read: Mona Fandey Case
OF LAW
 Constitutional Law
 Property Law
 Company Law

 Family Law
 International Law
CATEGORIES  Intellectual Property Law

OF Read: McDonald’s v McCurry
LAW
And many more laws...

Sinha & Dheeraj, Legal Dictionary:
Public law is the branch of the law which concerned with the
relations between:
Public Law
 governmental divisions
 the organizations of government
 the relations between the individual and the state

Constitutional & Administrative Criminal
Describe the rights of individuals Systemise the law against criminal

under the government
Regulates the duties and exercise Public prosecutors will seek

of powers by administrative punishment for inflicted crimes in
Public Law authorities state level
Deals with matters such as the There must be a “wrongful act” and a
supremacy of parliament and the “guilty mind” in order to test the
rights of citizens crime offences
Includes the areas dealing with E.g. criminal breach of trust, murder,
state and federal powers cheating, theft etc.

Private Law  Private law is the branch of the law which concerned with the
legal relations between private individuals, as distinct from public
law

Contract Tort
Based on the agreement No agreement between parties
between two or more for claims against the civil
parties wrong or breach of general
duty
Must meet all essential The act or omission must be
Private Law elements to form a contract wronged and must prove
(offer, acceptance etc.) required elements (duty of
care, breach of that duty,
causation and the damages
must not too remote)

 International law is a body of rules and principles governing the
relations of nations between each other
International
 Since these rules could not be enforced by any definite
Law supranational (international) agency, their validity has long
depended on the extent to which any particular nation chose to
recognize them

Topics covered in an international law:
 Treaties: Agreement between states dealing with any matter of
international concern. E.g. Asean Agreement on Transboundary
Haze Pollution was adopted in 2002 to mitigate haze pollution
International
Law  Jurisdiction: Power of a state to make and enforce its laws at the
international level
 Human rights
 War and peace

Public
• It is the main part of legal rules applying between sovereign states. It deals with
relationship between states
• Includes law of sea, international criminal law, international humanitarian law
International Private
Law • It is the body of rights and duties of citizens of different sovereign states
towards one another. It deals with that branch of the law that applies to
individuals or legal entities involved in legal disputes of an international nature
• Also known as a “municipal law” - every country may have its own version of law
• The rules will guide the judge when the law in more than one country affects a
case (conflicts of law)
• Includes law on civil or human rights, negligence, contract
• Not only between a government and its own citizens but also in how its citizens
are treated by other nations

Federal Constitution
States Constitution
Written Law
Legislation
LEGAL Subsidiary Legislation
SOURCES OF Legal Sources Common law
English law
LAW Equity
Unwritten Law
Judicial Precedents
Syariah Law Customary Law

 Peninsular Malaysia, Sabah and Sarawak - one country but is not
governed exactly by the same set of laws
LEGAL
SOURCES Some laws are originated and adopted from other countries:
OF  England - Common law
LAW  India - Criminal law and Contract law
 Australia - Land law

Article 160(2) of the Federal Constitution:
WRITTEN  “Written law” includes this Constitution and the Constitution of

any State
LAW

Section 3 of the Interpretation Acts 1948 and 1967 defines “written
law” as:
WRITTEN  The Federal Constitution and the Constitutions of the States and
subsidiary legislation made thereunder;
LAW  Acts of Parliament and subsidiary legislation made thereunder;
 Ordinance and Enactments (including any federal or State law
styling itself an Ordinance or Enactment) and subsidiary
legislation made thereunder

Federal Constitution is the supreme (highest) law that applies
throughout the country
It constitutes:
Federal  Legislations
 Courts
Constitution
 Administrative aspects of law
 Powers of the government
 The monarchy
 Rights of the citizens

Sinha & Dheeraj, Legal Dictionary
 Constitution is the fundamental law of a state or nation

Federal  This Constitution is the supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this
Constitution Constitution shall, to the extent of the inconsistency, be void
 The constitution’s supremacy is preserved by allowing the courts

to review legislative or executive acts

Can the Constitution be amended?
 Yes. Article 159 (1) – provides the Constitution may be amended by
passing a federal law, subject to certain provisions
 Except for certain minor amendments, Dewan Rakyat and Dewan
Negara requires absolute majority of 2/3
Federal
Constitution Meaning:
 148 members of 222 members of Dewan Rakyat must vote in
favour
 For Dewan Negara, 47 members out of 70 members

Federal
Constitution Supreme Constitutional 3 branches of
Law of Monarchy Government:
Malaysia Legislature,
Executive &
Judiciary

 The Yang Di-Pertuan Agong (the King) is the Federal head of State
of Malaysia. He reigns but does not rule
 Sultan or Yang Di-Pertua Negeri is the head of state
Federal  Every State has a government and own written constitution on

who shall govern and how
Constitution
 The Prime Minister is the elected head of government
 Chief Ministers are head of the state government

Article 73 of Federal Constitution states:
In exercising the legislative powers conferred on it by this

Constitution:
Federal (a) Parliament may make laws for the whole or any part of the
Constitution 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 that State

 The laws made by the Parliament and the State Legislatures must
comply with the manners and provisions laid out in the Federal
constitution
The divisions of legislation are prescribed in the Ninth Schedule:
Federal  Federal List (List I) are legislated by the Parliament

 State List (List II) are legislated by the State Legislature
Constitution
 Concurrent List (List III) are matters shared by the Parliament and
State Legislature

Federal List (List I)
 Matters where Parliament can legislate
State List (List II)

Federal  Matters where State Assembly can legislate
Constitution
Concurrent List (List III)
 Matters where Parliament & State Assembly can legislate

Federal Government
 External affairs, national defence, internal security, citizenship,
etc.
State Government
Federal  Islamic law, land, agriculture and forestry, local government, etc.
Constitution
Federal & State Government
 Town & country planning, housing, national park, social welfare,
etc.

Article 75
Federal  If any State law is inconsistent with a Federal law, the Federal law
Constitution shall prevail and the State law shall, to the extent of the
inconsistency, be void

 The Yang di-Pertuan Agong (YDPA) is Malaysia’s Head of State
Federal  He is elected by the Conference of Rulers, by 5-year term rotation,

from the Rulers of the nine Malay States
Constitution
 As a constitutional monarch, he is required to exercise his
executive powers on the advice of Cabinet

 Involves matters related to the Ruler (to act on advice), the
Executive Council, the Legislature, the Legislature Assembly,
State employees and amendment of the constitution and financial
provisions
State Article 71(1) of the Federal Constitution:

Constitution  ‘The Federation shall guarantee the right of a Ruler of a State to
succeed and to hold, enjoy and exercise the constitutional rights
and privileges of Ruler of that State in accordance with the
Constitution of that State; but any dispute as to the title to the
succession as Ruler of any State shall be determined solely by such
authorities and in such manner as may be provided by the
Constitution of that State’

 a law made by Parliament is called an Act of Parliament
Article 73 of the Federal Constitution:

In exercising the legislative powers conferred on it by this
Legislation 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 that State

 The Parliament has the power to enact laws
 Legislative power is granted in accordance with Article 44 of the

Federal Constitution of the Yang Di-Pertuan Agong, the Senate
(Dewan Negara) and the House of Representatives (Dewan
Legislation Rakyat)
 Duties in legislature include the duty to amend the constitution,

approve the new law, repealing the old law and new laws and
verifying its progress

 The Parliament has power to make laws for the whole of the
Federation or any part
 Federal Parliament has jurisdiction over many important matters

such as finance, commerce and industry, education, defence and
foreign affairs
Legislation
The Parliament will exercise its power to make laws by the passing
of Bills in both Houses of Parliament:
 Senate (Dewan Negara) - Upper house
 House of Representatives (Dewan Rakyat) - Lower house

 A Bill may originate in either of the House
 The House, which a Bill is originated, shall send it to the other

House once the Bill has been passed
 A Bill goes through several stages of ‘Reading’ in both the Houses

Legislation of Parliament i.e. House of Representative (Dewan Rakyat) &
Senate (Dewan Negara)

 Drafting of Bill - after the proposal approved by Cabinet
 First Reading - only the long title will be read. This is when the
Minister will introduce the Bill in Dewan Rakyat. No debate is
allowed
 The minister will announce orally the expected date of the Second
Legislation Reading
 The text of the Bill must have been printed and circulated to every
member of the House before the Second Reading

 Second Reading - the most important for debate and voting
 The contents, merits and principles of the Bill are debated and
discussed by all members of the House
 Voting is by simple majority. For Constitutional amendments, it

Legislation requires 2/3 majority
 The Bill pass on to the Committee Stage if the majority of the

members are in favor of it. If the majority vote against the motion
that the Bill be read the second time, no further action will be
taken

 Committee Stage - detailed examination of the Bill. The
committee can be Committee of the whole House or a select
committees
 They will have specific debate on all clauses, schedules and

preambles
Legislation
 Amendments will be carried out if necessary. Special technical
details of the Bill may be discussed at this stage

 Third Reading - for further ‘read for the third time and do pass’.
Voting for second time
 A Bill that clears Third reading is transmitted to the other House

where it goes through a similar procedure. i.e. the First, Second,
Legislation Committee Stage and Third Reading
 A Bill passed by one House can be amended by the other House. If

both Houses are unable to agree on the amendments, then it is
‘laid aside’. Meaning no further action is possible on the Bill

 Royal Assent – A bill secures the passage through both houses is
presented to the Yang Di Pertuan Agong
 He will give his royal assent in form of Public Seal within 30 days
from the date a Bill is being presented to him
Legislation
 The Bill will become law at the expiration of the 30 days period
specified should the Yang di-Pertuan Agong, for whatever reason,
fails to give his assent to the Bill within the specified period

 However, no laws shall come into force until it has been gazetted
or published in the Gazette under the Article 66(5) of the Federal
Constitution
Legislation  The law will be printed
 http://www.federalgazette.agc.gov.my/index.php

 On 6 April 2017, Dewan Rakyat was in a marathon session for
almost 20 hours, ended at 5.05am setting a new record as the
longest Parliament session.
Legislation  The old record time was at 4.25am set in 2015
 Few Bills were passed

6 November 2020
 The government tabled Budget 2021 at Dewan Rakyat
25 November 2020
The Supply Bill  The policy stage in Parliament. Budget 2021 was passed with a
(Budget 2021) simple voice vote
 Under Standing Order 46(3), a Bill will be put to the House for a
voice vote of “ayes” and “noes” at the debates, with the results
announced by the Speaker

26 November 2020
 Amanah's Pokok Sena MP Datuk Mahfuz Omar called for a bloc
vote
 Parliament Standing Order 46(4): The voice vote results can be
The Supply Bill challenged by an MP by calling for a bloc vote which involves
actual vote count of lawmakers present in the House
(Budget 2021)
 However, for a bloc vote to be triggered, at least 15 lawmakers
must be seen standing in support, failing which the Speaker will
announce results of the earlier voice vote
 There were only 13 MPs who stood up in support

30 November 2020
 Resume debates at the Committee Stage
The Supply Bill  Although Budget 2021 can be passed via a simple voice vote after
(Budget 2021) debates at the committee stage completes, it can still be derailed
via a bloc vote

The Supply Bill
(Budget 2021) 111 108 1
 Total: 220/222 (2 vacant due to death of the MP)

 111 votes represented a simple majority

16 December 2020
 All 27 ministries’ budgets had cleared the committee stage of
Budget 2021 after passing the policy stage. The opposition lost all
its bloc voting during the debates
 The RM322.5bil Budget, the largest in the nation’s history was

passed with a thin margin at the Third & Final Reading
The Supply Bill
(Budget 2021)  The Budget 2021 is expected to handle the economic and social
impact of the Covid-19 pandemic

What now?
 The Budget will now be presented to the Dewan Negara for

debates
The Supply Bill
(Budget 2021)  The Dewan Negara cannot formally reject Bills but can delay their
passage by one month or a year if it is not a money Bill
 Once passed by the Dewan Negara, the Budget will be sent to the
Yang Di-Pertuan Agong for the Royal Assent

Answer: YES
 National Security Council (NSC) Bill did not receive royal assent
like other Bills
Can a Bill  It was passed by Dewan Rakyat and Dewan Negara with 107 in
favour and 74 against the Bill. Some abstained or absented
become Law themselves
without Royal  However, the Conference of Rulers wanted some provisions of the
Bill to be refined
Assent?
 The Bill automatically became law after 30 days, on 18 February
2016 as if the royal assent was given
 NSC Act 2016 came into force on 1 August 2016

 The Anti-Fake News Bill 2018 passed the Second Reading at the
Dewan Rakyat after a bloc vote, to bring the Bill to the Committee
Stage. The bloc vote was called by the opposition, but 123
members voted in favour of and 64 members voting against the
Bill
Anti-Fake
 The bloc vote took place after 50 MPs debated the Bill at the
Laws 2018 policy stage
 At the Committee Stage, the Dewan Rakyat on 2 April, passed the

Anti-Fake News Bill with two amendments: to replace the word
“knowingly” with “maliciously” and reduce the maximum jail term
from 10 to 6 years

 The Dewan Negara passed the Anti-Fake News Bill 2018 on 3 April
with a majority vote after 17 senators spoke during the debate
session
Anti-Fake  The Anti-Fake News Bill 2018 has received the Royal assent and
has been gazetted. The Federal Gazette states the law received
Laws 2018 the Yang di-Pertuan Agong’s Royal Assent on 9 April 2018
 The new law comes into effect on 11 April. A person committing

this offence is liable of not exceeding RM500,000 or imprisonment
of a term not more than 6 years

DEWAN RAKYAT
Anti-Fake
Laws 2018

DEWAN NEGARA
Anti-Fake
Laws 2018

Section 3 of the Interpretation Acts 1948 and 1967:
Subsidiary  Subsidiary legislation means any proclamation, rule, regulation,

Legislation order, notification, by-law or other instrument made under any
Act, Enactment, Ordinance or other lawful authority and having
legislative effect

Reasons to have this delegation:
 The legislature has insufficient time to enact the legislation
Subsidiary  Many modern legislations involve technical matters therefore

experts must be referred to
Legislation  When the laws need to be made or amended quickly
 Persons or bodies where powers have been delegated to them will
have the authority to make the changes

Ordinance and Enactment
Section 3 of the Interpretation Acts 1948 and 1967:

 State laws are called Enactments, including those made by the
former Malay States before Merdeka Day. The only exception to
this is the State of Sarawak whose laws are still termed Ordinance
Legislation
 Article 160(2) of the Federation Constitution:
 ‘Enactment’ where the expression occurs in the Eight Schedule,
means a law made by the Legislature of a State

 Unwritten law constitutes that part of the local law that is not
recognized as ‘written law’ in the Malaysian context
 It falls outside the classification afforded under Section 3 of the
Interpretation Acts 1948 and 1967
Unwritten law comprises the following:

UNWRITTEN  English Law - Common Law and Equity as applicable in the local
LAW context
 Judicial decisions (or case law) of the superior courts
 Customary Law and usages that have been recognized as
applicable by the Malaysian courts

 Civil Law Act 1956 states that English Law can be used in Malaysia
However, the application of English law can apply subject to two

limitations:
English Law  With the absence of Malaysian law on the particular subjects,
English law is applied only to fill the missing part in the Malaysian
legal system
 Only English Law that suited to local circumstances could be

applied

Section 3(1) Civil Law Act states:
 “The said common law, rules and equity and statutes of general
English Law application shall be applied so far only as the circumstances of the
States of Malaysia and their respectives inhabitants permit and
subject to such qualifications as local circumstances…”

 Section 3 of the Interpretation Acts 1948 and 1967 defines
“common law” to mean the common law of England
English Law:
 It is mainly made up of non-statutory (non-written) laws, which
Common Law are the precedents derived from judgements given on real cases
by judges in courts

 As the law was stood up prior to Merdeka, this English common
law was only applicable “as the circumstances of the States of
Malaysia and their respective inhabitants permit and subjected to
such qualifications as local circumstances render necessary”
English Law:
Common Law  Malaysian Courts have a wide discretion whether to accept the
common law principle or not

 When Malaysian judges accept such principles, they become part
of Malaysian common law and Malaysian law has developed in
that manner
English Law:  Almost all ex-British colonies have adopted the common law
system
Common Law
 But in each country, the Courts develop their own common law
which may not be identical to the English common law

 Equity is the body of law, formerly enforced in the Court of the

Chancellor of England to aid, supplement and correct the common
law
English Law:
Equity  Equity applied the concept of ‘justice’ or ‘fairness’
 It is used in common law decisions as a gauge of moral rightness in

the interpretation of statutes, and in the application of legal rules

 It is developed after many conflicts could not be redressed
through the common law. Meaning, it is for the King to decide
English Law:
Equity  The King would refer the cases to his adviser or known as the
King’s Chancellors

 The King’s Chancellors did not apply the common law (judicial
precedents) but they practiced the Christian precepts on fairness
(good faith)
English Law:  When there are conflicts between the English Common law and
Equity Equity law, the rules of equity shall prevail
 But when there is a conflict between English Law and Malaysian

written law, Malaysian written law will prevail

 Judicial Decision is the law which is created by the decisions of
case law in courts
 The past judicial decisions in similar situations are known

as judicial precedent (explained in later slides)
Judicial
Decision  This judicial precedent becomes an example or authority, for
judges deciding similar issues in the future

 It means that courts look to past and similar issues to guide their
decisions
 The decision made by the judge in this situation is known as

Judicial “Doctrine of Binding Judicial Precedent”
Decision

 The doctrine of judicial precedent is encapsulated in the Latin
terms “stare decisis”
 Precedent is the official action or decision that happened in the

past seen as example or rule to be followed
Judicial
 The general rule is decisions of higher courts bind lower courts and
Precedents some courts are bound by their own decisions
 Malaysian court do refer to decisions of higher court of other

jurisdiction. However, the decisions is persuasive rather than
binding judicial precedents

 Case A - The Court of Appeal has made a decision in 2000
 Case B - the same case facts and situations have been brought to
the High Court, which is a lower court, in 2005
Judicial
Precedents  The High Court must therefore decide the case based on the
principles governed by the Court of Appeal in 2000
 Under this doctrine, decision made by higher courts will bind
lower courts

Stare decisis is based on 2 conditions:
 The court making the decision is higher than the court is to be

bound by the decision. If both courts are at the same level, then a
Judicial decision by one does not bind the other. E.g. High Court’s decision
Precedents
 The court must be in the same hierarchy. E.g. Federal court in
Malaysia is 1 hierarchy which is different from other common law
jurisdiction such as British, Hong Kong

However, a few situations where the court may not apply the earlier
precedent:
 The judge in Superior Court overruled the precedent decided by

the lower courts
Judicial  Precedent laid down by the lower court where the case is on
appeal
Precedents  The earlier precedent was arrived at per incuriam (made in
ignorance of a statute or a binding precedent)
 There are material differences in facts between the case
established the precedent with the new one

Advantages Disadvantages
• Uniformity – for all • Rigidity – once a rule laid
down, it is binding
• Certainty – lawyers • Illogical – if judges do not
Judicial can advise on the wish to follow judicial
Precedents probable outcome precedents, judges may
introduce illogicality and
artificiality

• Flexible – rules based • Complexity – so many
on facts precedents making it hard
• New rules can be to find relevant
Judicial established to meet precedents to follow
Precedents new circumstances
and changing needs
of society

• Save time – already • Bulky – so many
existing solutions precedents and no one
Judicial can know them all
Precedents
• Save legal cost – • Slow development –
lesser disputes depends on slow and
expensive litigation
systems

 Custom is a rule of conduct which in a given place and among
given groups of persons has been followed for an appreciable
time. They are given legal force by the courts
Customs from the local inhabitants such as:

Customary  Family law E.g. marriage, divorce and inheritance
Law  Adat in the Malay community. E.g Adat Pepatih in Negeri
Sembilan
 Hindu and Chinese customs
 Native customary law e.g. Iban in Sarawak

 Adat Pepatih is effective in Negeri Sembilan for land lineage,
election of lembaga, undang and theYang di-Pertuan Besar
 Generally, Hindus and Chinese customs have become little or no

Customary effect after the enforcement of Law Reform (Marriage and
Divorce) Act 1976 on 1 March 1982 where polygamous marriages
Law were abolished

 The Syariah law only applies to the Muslims
 It is a sacred law of Islam as revealed by Prophet Muhammad

s.w.t.
Syariah Law
 It is totally based on God’s commands on duties towards Allah and
relationship of one Muslim with another

Article 3 of the Federal Constitution states:
 Islam is the religion of the Federation but other religions may be

practiced in peace and harmony in any part of the Federation
Syariah Law  The court that will enforce the Islamic law are the Syariah Court
for matters such as:
 Family matters
 Marriage
 Divorce

YDPA
Legislative Executive Judiciary

3 BRANCHES
OF Parliament
Prime
Ministers/Ministers
Chief
Judge
GOVERNMENT
House of Government
Senate Courts
Representative Ministries
Government
Citizen Citizen
Departments

 Malaysia practices Parliamentary Democracy with Constitutional
Monarchy and YDPA as the Paramount Ruler
Separation of  The Federal Constitution was legislated with the setting up of

conditions for this system to exist
Powers
 One of the characteristics of Parliament Democracy is the
separation of powers into 3 parts which are the Legislative,
Judiciary and Executive

Legislative Executive Judiciary
Separation of Makes law Administers Interprets
Powers law and
apply law

Article 44
 Parliament is a bi-cameral legislature comprising of:

 Lower house known as House of Representatives (Dewan Rakyat).
A member of the Dewan Rakyat is called a Member of Parliament
Legislative (MP).
 Upper house known as the Senate (Dewan Negara). A member of
the Dewan Negara is called a Senator.
 The Yang di Pertuan Agong is also a part of Parliament

 Parliament is a legislative body that passes and amends Federal
laws, so that administration could run smoothly
 They cannot interfere to the administration carried out by the

Executive
Legislative
 Parliament is where law will be enacted and the voice of the
people was heard through their representative
 They will scrutinizes Government policies and approves

Government budgets and proposal for new taxes

Article 46 - The Dewan Rakyat has 222 elected members
Members of Parliaments by State

31
26 25
24
22
Legislative 15 14 14 13
11
8 8
6
3
1 1

Dewan Rakyat Dewan Negara
Number of 222 70
members
Mode of Elected by • 4 Senators - appointed by the
 Article 45 - 54
appointment voters YDPA for the Federal Territories
(2 for KL, 1 for Putrajaya, 1 for
Labuan)
Legislative • 26 Senators - elected by State
Legislatures (2 for each State)
• 40 Senators - appointed by the
YDPA
Term of Until the • 3 years, unaffected by
Office dissolution of dissolution of Parliament
Parliament • A person can only be a Senator
for a maximum of 2 terms,
whether consecutive or not

 Article 55 Parliamentary Cycle
Each parliament lasts for 5 years from the date of its first meeting,
unless dissolved earlier by the YDPA at the request of the PM
Parliament dissolved
Legislative Elections within 60 days of dissolution
Next Parliament within 120 days of dissolution

New Parliament starts
13th Parliament First Meeting was 24 June 2013
13th Parliament Automatic Dissolution 24 June 2018

Legislative

Parliament
dissolved
7 April 2018
Legislative GE 14
9 May 2018
GE15
2023

Article 44 - 68
 No person shall be liable in any court for anything said or vote

given in any proceedings
Parliamentary
 The immunity is effective against all criminal and civil laws
Privileges
 It cannot be questioned in any court

However, there are exceptions. The immunity does not apply to:
 Laws passed under Article 10(4) of the Constitution which prohibit

the questioning of any matter, right, status, position, privilege,
sovereignty or prerogative
Parliamentary
Privileges  Any offence under the Sedition Act 1948
 Any words or actions which were not part of parliamentary

proceedings

 Involves in administering the nation and ensuring that
government policy will be carried out according to the law
 The government departments which assist in administering the

Executive nation are part of the executive
 The duties must be done according to the power granted by the

law so that it will not be void and be held ultra vires and has no
effect

Article 39 – 43
 The executive authority of the Federation is vested in the Yang di-

Pertuan Agong
Executive
 But, as a constitutional monarch, he must act in accordance with
the advice of the Cabinet, except in limited matters such as the
giving of consent to dissolve Parliament

Article 43 Appointment of Cabinet
Dewan Rakyat
• YDPA appoints PM
• Acting in his discretion, the YDPA first appoints as
Prime Minister a member of the Dewan Rakyat
who in the YDPA’s judgment is likely to command
the confidence of the majority of that Dewan
Executive Dewan Rakyat
• YDPA appoints other Ministers under PM’s advice
• Acting on the advice of the PM, the YDPA appoints
other Ministers from among the members of
either the Dewan Rakyat or the Dewan Negara
Dewan Negara
• Cabinet is formed
 The law which was enacted by the legislative will not only govern
the people but also the nation including the three government
organs
Judiciary  If dispute arise as to whether certain action contradict the law,

then it may be challenge in court
 The court system under judiciary plays an important role in

determining as to whether action done is legal or illegal

SUPERIOR COURTS
Special
Federal Court Court
Court of Appeal
Administration High Court in Malaya / High Court in Sabah

& Sarawak
of Law SUBORDINATE COURTS
Sessions Court
Syariah
Court Magistrates’ Court

Articles 121 – 131A
 The power to interpret laws, including the Constitution, lies with

the judiciary
Judiciary  The judiciary will interpret the law enacted by the legislative and
at the same time, applies the said law in arriving at their decision
 All parties will be treated equally and the judiciary is free to make
judgments without coercion, fear or favour

Article 122B Appointment of Judges
 The YDPA, as a constitutional monarch is required to act on the
advice of the PM
 Judges are in effect appointed by the Prime Minister, through this
process:
Judiciary
PM consults persons PM advises the
stipulated in Art YDPA to appoint YDPA appoints* that
122B (e.g. the Chief the person person as judge,
Justice of the selected by the after consulting the
Federal Court) PM as a judge Conference of Rulers

Article 125 Judges’ Security of Tenure
 Once appointed, judges cannot be removed except under
exceptional circumstances (such as infirmity of mind) by a tribunal
of judges
Judiciary Chief Justice of the President of the Chief Judge of a

Federal Court Court of Appeal High Court
Other Federal Court Other Court of Other High Court

Judges Appeal Judges Judges

 It is the highest court of the land
 Every proceeding must be decided by 3 judges or greater uneven

Federal Court numbers may be decided by the Chief Justice
 The decision of the majority becomes the decision of the Court

Federal court will hear and determine:
 Civil cases from the Court of Appeal after leave (permission) is

Federal Court granted by the Federal Court
 Criminal appeal cases from Court of Appeal and decided by High

Court

 When an appeal is heard by 3 judges or more, the decision of the
majority becomes the decision of the Court
The Court of Appeal will hear:

 For civil cases, all appeals from the High Courts:
 where claims are more than RM250,000
Court of  where claims are less than RM250,000, a leave (permission) of the
Appeal Court of Appeal must first be obtained
 For criminal jurisdiction, appeals from High Courts in original
jurisdiction and appeal or revisionary jurisdiction decided by
Sessions Court
 criminal appeals against decisions of the High Courts

 A judge sitting alone
 General supervisory and revisionary jurisdiction over all the
Subordinate Courts
The High Courts have:

High Courts
 unlimited civil jurisdiction but normally tries cases value in dispute
exceeds RM1,000,000
 powers to hear criminal matters. E.g. murder, drug trafficking
 to hear appeals from the Subordinate Courts in civil and criminal
matters

 Sessions Courts unlimited jurisdiction does not exceed
RM1,000,000
 Civil nature e.g. motor vehicle accidents

Session Courts
 Have powers to hear all criminal matters except for offences
punishable with death and may pass any sentences allowed by law
except the sentence of death

Magistrates’ Courts are staffed by:
First class magistrate

 May try all offences punishable with up to 10 years imprisonment
or by fine only
Magistrates’
Courts Second Class magistrate
 May try all offences punishable with up to 12 months
imprisonment or by fine only

First Class Magistrate may pass sentence not exceed:
 5 years imprisonment
 A fine not exceeding RM10,000

Magistrates’
Courts  Whipping up to 12 strokes
 Any combination of the above

Second Class Magistrate may pass sentence not exceed:
 6 months imprisonment
Magistrates’  A fine of RM1,000

Courts
 Any combination of the above

 Setting up of the Special Court in 1993 became a major turning
point in the legal system in Malaysia
Special Court  Before the amendment was made, no proceeding can be brought
in any court against theYang di-Pertuan Agong or the Ruler of a
State in his personal capacity

 The Chairperson of the Special Court shall be Chief Justice of the
Federal Court together with the Chief Judges of the High Courts
and two other persons who hold or have held office as Judge of
the Supreme Court or a High Court appointed by the Conference
of Rulers
Special Court  The Special Court has exclusive jurisdiction to try all offences
committed in the Federation by the Yang di-Pertuan Agong or the
Ruler of a State and all civil cases by or against the Yang di-Pertuan
Agong or the Ruler of a State, notwithstanding where the cause of
action arose

 Established under the Child Act 2001 for the purpose of hearing,
determining or disposing of any charge against a child
 Section 2 - Child is a person under the age of 18 years, and for the
Court for purposes of criminal proceedings, means a person who has
Children attained the age of 10
 The words ‘person convicted’, ‘conviction’ and ‘sentence’ cannot

be used in relation to a child dealt with by the Court for Children.
The terms used are ‘child found guilty’, a ‘finding of guilt’ and an
‘order made upon a finding of guilt’ respectively

 Ultra vires means “beyond the powers”
 It is ultra vires if an act requires legal authority and it is done

without such authority
Doctrine of
Ultra Vires  Ultra vires acts are invalid
 For the administrators, this also governs the validity of all

delegated and sub-delegated legislation

For administrative power, it is ultra vires if:
 It is unauthorized in substance
Doctrine of
 It is procedurally irregular, improperly motivated or in breach of
Ultra Vires the rules of natural justice
 an act that goes beyond the limits of the powers conferred on it

 The process of fighting or defending a case in a court of law
 Litigate means to take legal action
LITIGATION  In Malaysia, court cases are presented and conducted under an

adversarial system as adopted in England
 The plaintiff and the defendant are to find evidence to be

presented to the judge to adjudicate

Criminal Law Civil Law
 to punish the offenders  to redress the wrongs (to set
right, remedy or rectify)
 to give offenders & others a strong
inducement not to commit same or  award of damages -
similar crimes compensation or restitution (to
bring back to a former
 to reform him and perhaps to
Criminal Law & satisfy the public sense that
condition/restore)
wrongdoing ought to meet with  offences against individuals
Civil Law punishment
 burden of proof: on balance of
 passing of sentences probabilities, whose case is
stronger
 offences against the State for
obligations imposed on individuals
 burden of proof - beyond
reasonable doubt

Party taking action Government Private party i.e.
corporation, individual
person
Party who files Public Plaintiff / Claimant
lawsuit is called Prosecutor
The legal action Criminal Civil defendant
against defendant

Punishment A defendant will be If a defendant is liable,
convicted/guilty or plaintiff will generally be
acquitted/not guilty awarded a judgment:
• a sum of money which
If convicted he will the losing party will
generally receive a have to pay
sentence i.e. jail, fine, • an injunction i.e. an
death penalty etc. order that someone do
or refrain from doing
something

Burden of The State / Prosecutor Initially on the plaintiff
proof must prove the The burden can shift to
defendant is guilty the defendant to refute
or rebut the plaintiff's
evidence
Standard of The defendant is guilty The defendant is more
proof beyond reasonable likely to be liable than
doubt not liable, on balance of
probabilities

 Prima facie is a Latin phrase which means “at first glance” or “on
the face of it”
 Once the plaintiff/public prosecutor has adduced their evidence,
the judge must decide if there is a “prime facie” case. i.e. sufficient
PRIMA FACIE justification that there is a case to answer
CASE
 “Prima facie” is not a conclusive finding of guilt on the charges
 The finding of whether the defendant or accused is guilty or not of
the allegations is made at the conclusion of the trial

 If the judge is of the opinion that the plaintiff or public prosecutor
has not proven a “prima facie” case, the judge must give judgment
in favour of the defendant or accused
PRIMA FACIE
 Principle: presumption that the defendant / accused are innocent
CASE until proven to the contrary

 A case proceeds in the following sequence:
 Plaintiff / PP begins their case
 Plaintiff / PP concludes their case

How the case
proceeds?  The judge makes a findings of whether there is a ‘prima facie’ case
 If no “prima facie” case - judgment in favour of defendant/accused

 If there is a “prima facie” case proven - defendant/accused called
on to begin their case
 Defendant /accused begin their case; OR
How the case  Exercise their rights of silence

proceeds?
 The judge decides on whether the defendant/accused are liable
/guilty or not

 ADR is a term for the methods that parties can use to settle their
disputes without resorting to court proceedings
ALTERNATIVE The most common forms of alternative dispute resolution:
DISPUTE
 Mediation
RESOLUTION  Arbitration
 Adjudication

 Mediation is a voluntary process of settlement by the assistance of
a third party
 A mediator facilitates communication and negotiations to assist

Mediation the conflicting parties to reach an amicable settlement
 The Mediation Act 2012 facilitate this process

The rules of mediation:
1) Disputing parties may submit to mediation at any time
 Either before or during the court proceeding. The judges may also
encourage parties to mediation
Mediation
2) Disputing parties may decide the terms of mediation
 Parties may sign a mediation agreement with agreed terms.
Example: Which mediation forum to go, parties’ choice of
mediator, mediation communications, confidentiality etc.

The rules of mediation:
3) The mediator shall have no decision-making power

 Mediator only play the role of facilitating
communications/negotiations and identifying their needs, and
developing options amongst them for amicable solution
Mediation
4) All disclosures, communications and even admissions made
under a mediation session are strictly “without prejudice”
 It is not subject to discovery or be admissible in evidence in any
proceedings unless parties consented to it

 If parties cannot come to a consensus, they can request the
Malaysian Mediation Centre of the Bar Council (“MMC”) to appoint
a qualified mediator from its panel
 Any agreement arising from a successful mediation is recorded in

Mediation a Settlement Agreement signed by the parties
 If mediation is not successful, parties may proceed to pursue their

rights in litigation or arbitration

 Arbitration is a private and judicial determination of a dispute by
an independent third party
The difference between mediation and arbitration:

Arbitration  Mediation - the parties maintain full control of the workings and
outcome of the decision
 Arbitration - the arbitrator decides the outcome of the
proceedings and the parties are bound by that decision

 Arbitration is similar to court proceedings where the arbitrator
(like the judge) will decide the dispute
 Parties may agree by way of an arbitration clause to refer any

Arbitration dispute that might arise in respect of that contract to arbitration
 Parties may also agree to refer an existing dispute to arbitration

even though there was no such prior agreement

 Parties are at liberty to decide on the number of arbitrators, the
appointing body in the event parties cannot mutually agree on the
choice of arbitrators, the place of the arbitration, etc.
Arbitration  The Arbitration Act 2005 is the law governing arbitration in

Malaysia. Asian International Arbitration Centre (AIAC) is the
default appointing body (previously known as Kuala Lumpur
Regional Centre for Arbitration (KLRCA))

 Arbitrators do not have to be legally qualified, but they must be
independent and impartial
Arbitration  There is no specific qualifications required of arbitrators. However,

parties are usually advised to appoint arbitrators who have
sufficient experience in arbitration as well as technical knowledge
on the subject matter in dispute

 It is a process for the resolution of payment construction disputes
under the Construction Industry Payment and Adjudication Act
2012 (CIPAA)
 The unpaid party is only allowed to refer a “payment” dispute not

Adjudication other claims like tort etc.
 Section 4 defines “payment” to mean “payment for work done or

services rendered under the express terms of a construction
contract”

The non-paying party has to reply to the claim dispute:
 They may accept that they owe the unpaid party the claimed
amount and propose to make payment to the unpaid party
 They may accept that they owe a part of the claimed amount and
Adjudication propose to make payment of the said part to the unpaid party
 They may completely deny the claimed amount and state its
defence to the claim
 They may opt to not reply to the Payment Claim within the 10
working days at all

 If they do not respond to the Payment Claim at all, the entire
Payment Claim is deemed to be disputed and the Payment Claim
Adjudication can be taken for adjudication proceedings

 The Ministry of Urban Wellbeing, Housing and Local Government
set up the Tribunal for Homebuyer Claims under the Housing
Development (Control and Licensing) Act 1966 to assist parties in
dispute over housing matters
 For strata properties, the Strata Management Tribunal is set up
Statutory under Strata Management (Strata Management Tribunal)
Regulations 2015
Tribunal  The Tribunal For Consumer Claims was established under the
Ministry of Domestic Trade and Consumer Affairs to assist on
claims for any loss suffered matters concerning consumer’s
interest

Malaysian Legal System

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MALAYSIAN

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 A federal territory is a district under the control of the federal

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Rukun MAKA KAMI, rakyat Malaysia, berikrar akan menumpukan seluruh

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NOW THEREFORE, we, the people of Malaysia, pledge to

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WHAT Sir John Salmond, Jurisprudence:

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WHAT Article 160(2) of the Federal Constitution:

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Classification Procedural law Source of Reference

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CATEGORIES  Intellectual Property Law

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Describe the rights of individuals Systemise the law against criminal

Regulates the duties and exercise Public prosecutors will seek

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WRITTEN  “Written law” includes this Constitution and the Constitution of

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Article 4(1) of the Federal Constitution:

 The constitution’s supremacy is preserved by allowing the courts

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 Sultan or Yang Di-Pertua Negeri is the head of state

Federal  Every State has a government and own written constitution on

 Chief Ministers are head of the state government

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In exercising the legislative powers conferred on it by this

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The divisions of legislation are prescribed in the Ninth Schedule:

Federal  Federal List (List I) are legislated by the Parliament

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State List (List II)

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Federal  He is elected by the Conference of Rulers, by 5-year term rotation,

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State Article 71(1) of the Federal Constitution:

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Article 73 of the Federal Constitution: