Law and the System that

applies it

WHAT IS

Body of
rules

Imposed
on an
individual

Enforced by
state/individual

Adjudicated
by judiciary

Nature of Law

Law is a body of rules which are

enforced by the state
(government).
Thus it is a command by the state
to the individual/group/corporation,
and enforceable by sanctions.

Classification of Laws
Law
Public Law

International Law

PublicIL

Consti.Law & Criminal Law

Admin.Law

Private Law

PrivateIL

Contract

Tort

Private law=Civil law

Trust

Public law

state
Constitutional law
Administrative law
Criminal Law

Public law

state
Constitutional law
Administrative law
Criminal Law

Public law

The public law is concerned with

the relationship between the state
and its citizens.
This comprises several specialist
areas/discipline such as

constitutional law,
administrative law and
criminal law.

Private law
State/government
Individual
As rights &
duties

Individual Bs
rights & duties

Private law=Civil law

Private law

Private law is primarily concerned

with the rights and duties of
individuals towards each other.
The states involvement in this area
is confined to providing a civilized
method of resolving the dispute that
has arisen.
Private law is also called civil law and
is often contrasted with criminal law.

Criminal Law
Concerns
Purposes

Offences
of

the action

Civil Law

against

the

Disputes

between

private

state

individuals

To preserve order in

To remedy the wrong which

the

community

by has been suffered

punishing
The parties

A prosecutor prosecute

A plaintiff sues a defendant

an offender
Where is the

The criminal courts

The civil courts

hearing
Decision

An

accused

may

be

convicted if he is guilty
and

acquitted

if

defendant

may

be

found

liable or not liable

he

innocent
Sanctions
Examples

Imprisonment, fine or Damages,

injunction,

specific

both

performance, rescission

Murder, theft, driving

Contract, tort, property law

with excess alcohol

A Single Act Can Amount to a

Criminal Offence and a Civil
Wrong

Criminal
offence

Civil wrong-tort of
negligence

Sources of law
Written Law
Unwritten
Customary
Islamic

Sources of Law
Malaysian Law
Written Law

Federal C

StateC

Legislation
Subsidiary Legislation

Unwritten Law

English
Common Law

Judicial
Precedent

Equity

Muslim Law

Custom

Sources of Law
Written Law

1.The Federal Constitution

This is the supreme law of the land.

Any law passed must be consistent with the

Federal Constitution.
It means, the law that was enacted must
be consistent with the provisions in the
Federal Constitution. (Article 4 of FC)

Article 4
Supreme Law of the Federation
(1) This Constitution is the supreme
law of the Federation and any law
passed after Merdeka Day which is
inconsistent with the this
Constitution, shall to the extent of
the inconsistency be void.

Case: Repco Holdings v

Public Prosecutor (1997)
The Court held that by virtue of Art 4(1) of the
FC, any law passed by Parliament which is
inconsistent with the Constitution shall be
void.
Our Federal Constitution is a living document
written for all time. Its language compresses
within it ideas that are manifold and concepts
which are multifaceted..an Act of Parliament
(that) contains provisions that are in direct
conflict with the supreme law, it is the duty of
this court to say so clearly and unequivocally

The Constitution lays down

the structure of Federal and State

Government
Legislative powers of Parliament and
State Legislative Assemblies-Schedule
9 (List 1, List 2 and List 3)
the fundamental rights of individual
(Articles 5 until 13)
and many more

Federal Law v State Law

Article 75:
Any State law that is inconsistent
with a Federal Law Federal Law
prevails.

2.The State Constitutions

There are thirteen States in Malaysia. Each

state has its own Constitution.
This provisions in a State Constitution is
regulated by Schedule 8 of the Federal
Constitution.
Generally the State Constitution touches on:

the State Ruler,

the State Government,
the State Legislative Assembly etc.

3. Legislation

Legislation is the law which is

enacted

by the Federal Parliament,

State Legislative Assembly.

It is a very important source of

written law.

Act

Enactment

Ordinance

Law enacted by
Federal Parliament

Law enacted by
State Legislative Assemblies

Law enacted
Sarawak State Legislative
Assembly

4. Subsidiary Legislation

It is enacted by persons or bodies to

whom the power is delegated.
Such persons or bodies may include

the Yang di-Pertuan Agong,

ministers,
and local government authorities.

4. Subsidiary Legislation

The Parliament enacts the main

and basic law leaving the detail
and technical matters to be
handled by subsidiary legislation
due to time constrain and lack of
technical knowledge.

E.g. various parking rules set out by

municipal councils, income tax rules
made by the tax department etc.

The subsidiary legislation cannot

contravene the main Act (Parent
Act) or the Constitution.

Sources of Law
Unwritten Law

Unwritten Law
Unwritten law means the law which is
not made at the Parliament or State
Legislative Assembly. There are four
types of unwritten law. They are:
1. English common law and rules of
equity.
2. Judicial decisions/precedents.
3. Customs and
4. Muslim law

I. English Common Law and

Equity
Section 3(1) of the Civil Law Act, 1956 provides
that English Common Law and Equity (statute
of general application in Sabah and Sarawak
only) will be applicable subject to 2 restrictions:
a) there should not be no local law governing the
particular issue; and
b) that part of English law must be suitable to the
local customs and circumstances of the people of
Malaysia.

I. English Common Law and

Equity(and Statutes of General
Application for Sabah and Sarawak
only)
7 April 1956

1 December 1951
12 December 1949

II Judicial Decisions

The law can also be found in decisions of the courts of

Malaysia.
These decisions are made systematically and it is
regulated by doctrine called doctrine of binding
judicial precedent.

Vertical application of the doctrine

Decision of superior courts such as Federal Court bind courts

below it in the hierarchy

Horizontal application of the doctrine

Superior court such as Court of Appeal bound by previous decision

II Application of Doctrine of
Judicial Binding Precedentexample

The Federal Court (Superior Court

in Malaysia) decided that a minor
is not liable under contract.
If a minor is sued in the High
Court for not fulfilling his
obligation in a contract, the High
Court will follow previous decision
of the Federal Court.

Sources of Law

Customary Law
Islamic Law

III. Customs

It is the customs of the local inhabitants

of Malaysia.
Mostly customs relating to marriage,
divorce and inheritance are given legal
force. E.g. adat temenggong and adat
perpatih.
The problems relating to customs can be
settled by Penghulus Court or by Native
Court in case of Sabah and Sarawak.

IV. Islamic Law

Islamic law pertaining to personal law of

muslims and Islamic law pertaining to some
criminal offences against Islam is a State
matter

This law is only applicable to Muslims and it is

administered in the Shariah Court.
The power to administer the Shariah Court is left
to the respective state.

The civil court has no jurisdiction over a

matter within jurisdiction of the Shariah
Court.(A121A of FC)

The Malaysian Judicial System

The judicial system evolves around the court
structure.
The judiciary is given power to decide cases.
The judicial power is vested in the superior
and subordinate courts.

Federal Court

Federal Judicial System

Court of Appeal
High Court of Malaya

High Court Sabah and Sarawak

Sessions Court
CC

MC

SCC

Penghulus Court

Sessions Court
SCC

MC
CC: childs court
MC: magistrate court
SCC: small claims court

CC

Native Courts-subordinate
courts exclusive to East
Malaysia
Native Court of Appeal
Residents Native court
District Native Court
Native Officers Court
Headmans Court

Syariah Courts-a State

Court

Religion is a state matter. Each state has its

own syariah court. Only muslims are
subjected to syariah laws.
Civil courts cannot interfere in a matter that
falls within the determination of the syariah
courts or assume jurisdiction over matters
that fall within the jurisdiction of syariah
courts see Lina Joy case)

Important Legislation
Pertaining to Jurisdiction of
Courts
Courts of Judicature Act 1964

Subordinate Courts Act 1948

Federal Constitution

What is an ACT?

Malaysian society is regulated by

laws passed by Parliament

Each Court Has Its Jurisdiction!!!

Penghulus Court
Penghulus Court:
Try Offences:
Enumerated in surat kuasa
Punish with fine not >25RM
Civil:
Amount in dispute not > 50RM

Each Court Has Its Jurisdiction!

Magistrates Court 1& 2s Original
Jurisdiction

Magistrate Court 1
Try criminal offences
offences:
Not > 10 years prison
Punishable with fine
Offences of robbery or
house breaking
Hear Civil cases:
Amount in dispute
<25,000RM
Recovery of immovable
property and rent

Magistrate Court 2

Try criminal offences:

Not > 12 months prison
Punishable with fine
Hear Civil cases:
Amount in dispute
<3,000RM

Punishment that can be

imposed?

Magistrate 1

Not more than 5

years
imprisonment
Not more than
RM10,000 fine
Not more than 12
strokes of the whip
A combination of
any of the above

Punishment that can be

imposed?

Magistrate 2

Not more than 6

months
imprisonment
Not more than
RM1,000 fine
Any sentence
combining the
above

Each Court Has Its Jurisdiction!!!:

Sessions Courts Original
Jurisdiction
Criminal :
Try all offences
other than that
punishable with
death

Civil:
Amount in dispute
not >250,000RM
Recovery of
immovable
property and rent

It has no appellate powers but has supervisory power

over magistrate courts!!!

Each Court Has Its Jurisdiction!!!:

High Courts Original
Jurisdiction: CRIMINAL
Original jurisdiction

Criminal:
Try all offences including that
punishable with death

Original Jurisdiction:
Civil

No limit with respect to amount in dispute, usually

>RM250,000
Land matters
Specific performance of contract
Rescission of contract
Injunction
Cancellation/rectification of instruments
Enforcement of trusts
Accounts
Declaratory decrees
Issue/revoke probate/LA
Guardianship/custody of infants
Validity/dissolution of marriage

Each Court Has Its Jurisdiction!!!:

High Court

Appellate jurisdiction:

Supervisory and
Hears civil and
Revisionary
criminal appeals from jurisdiction:

magistrate court and

sessions court.
Provided if civil case
amount not <
10000RM and in
criminal cases
punishable with more
than a fine of 25RM

Over subordinate
courts and
tribunals

Each Court Has Its Jurisdiction!!!:

Court of Appeal

Appellate jurisdiction:

Hears civil and criminal appeals from

high court.

Each Court Has Its Jurisdiction!!!:

Federal Court

Appellate jurisdiction:

Hears civil and criminal appeals from Court of

Appeal.

Original jurisdiction:

Determine validity of federal or state legislation

Determine dispute between state and federal
government
Determine constitutional issues referred by High
Court
Determine constitutional issues referred by YDPA

Small Claims Procedure

Amount in dispute RM5,000

No need legal representation
Heard by 1st class magistrate

Childs Court

>10 and <18 year old offender

Try all offences except punishable
with death

Industrial Court
Labor Court
Courts Martial

The Special
Commissioners
For Income Tax
Public Services
Tribunal

Consumer Claims
Tribunal
Housebuyers
Tribunal

Professional Disciplinary
Bodies