MALAYSIA LEGAL SYSTEM

APT2033 Business Law

Faculty of Entrepreneurship & Business
Universiti Malaysia Kelantan
SUB-TOPICS
1. Definition and concept of Law
2. Sources of Malaysian Law
3. Types of Law
4. Malaysian administration sytem
1. Definition and concept of
Law

A. What is Law?
B. Rule of Law
C. Law, the State and the Constitution
A. What is Law?
Layman: A general rule of conduct

Sir John Salmond: “the body of principles recognised

and applied by the State in the administration of
justice… In other words, law consists of the rules
recognized and acted on by courts of justice.

John Austin: Law is “a command set by a superior

being to an inferior being and enforced by sanctions
(punishments).
B. Rule of Law
 Professor A.V. Dicey: Laws should conform to a
minimum standard of fairness in both content and
procedure. The rule of law, at least, should contain the
following:
i. No person must be punished except for a breach of law,
- a person must be able to know whether something is
lawful or unlawful – it also recognizes the law as the
highest authority in the society;
ii. All persons are equal before the law;
iii. The rights or freedoms of citizens are enforceable in the
courts.
 C. Law, the State and the Constitution

It is important to determine ‘what is a State?’ – Legal

systems are administered entirely on the basis of the
political unit known as the ‘State.’

- State produces law – not a State, can’t produce law

- Law of a State is applicable within that State only; not
on other State – Malaysian law is applicable within
Malaysia only.
C. Law, the State and the Constitution
Article 4(1) of Federal Constitution:

“This constitution is the supreme law of the Federation

and any law passed after Merdeka Day which is
inconsistent with this Constitution shall, to the extent of
the inconsistency be void.”

See also: Dewan Undangan Negeri Kelantan & Anor v

Nordin Salleh & Anor [1992] 1 MLJ 697
 2. Sources of Malaysian
Law
A. Meaning of ‘Sources’
B. Written Law
C. Unwritten Law
D. Islamic Law
A. Meaning of ‘Sources’
‘Sources of Malaysian Law’ – the legal sources that
make up law in Malaysia

The main sources of Malaysian law:

 Written law
 Unwritten law
 Islamic Law
B. Written Law
 Also referred to as statute law
 Written law is the most important source of law. It
includes the following:
 The Federal and State Constitutions;
 Legislation enacted by the Parliament and State
Assemblies (e.g.: Acts of Parliaments, Ordinances
and Enactments);
 Subsidiary Legislation made by persons or bodies
under powers conferred on them by Act of
Parliament or State Assemblies (e.g.: Rules and
Regulations, By-laws, Guidelines etc.)
C. Unwritten Law
Unwritten law is simply that portion of Malaysian law which is
not written – law which is not enacted by Parliament or the State
Assemblies and which is not found in the written Federal and
State Constitutions.

Unwritten law comprises of the following:

 Principles of English law (also known as common law and equity)
applicable to local circumstances;
 Judicial decisions (also known as judge-made law, judicial
precedent, case law) of the superior courts: High Courts, Court of
Appeal and the Federal Court;
 Customs of local inhabitants which have been accepted as law by
the courts – e.g: Adat Perpatih
D. Islamic Law
 States have the power to administer Islamic law
 Head of religion – Sultan (except for Penang, Malacca,
Sabah, Sarawak and the Federal Territories)
 Being enforced by Shariah Court
 Applicable to Muslims only

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 3. Types of Law
A. Public law
B. Private law

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 A. Public law
 Governs the relationship between individuals and
the State
 Subdivision: (1) Criminal law;
(2) Constitutional Law

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 B. Private law
 Governs the relationship between amongst
themselves (rights and duties)
 Also known as civil law
 Subdivisions: (1)Contract (agreed by parties);
(2) Tort – general duty imposed by law
(not agreed by parties), exercisable only by
individuals – e.g: defamation
(3) Trust

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 4. Malaysian
Administration System
A. Doctrine of Separation of Power
B. An Overview of Judicial System in Malaysia
C. Illustration of the court system / Court
Hierarchy
D. The doctrine of ‘binding judicial precedent’
E. Jurisdiction of Court
A. Doctrine of Separation of Power
 Sir John Acton: “… absolute power corrupts absolutely.”
 Montesquieu: Doctrine of separation of power –
division of different political powers among the organs
of government – legislative, executive and judiciary

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 Organ of What they do? (Power they hold) In Malaysian scene,
Government who are they?

Legislature It makes and amend the law • Parliament (Federal

level) - Acts
• State Legislative
Assembly (State level)
- Enactments

Executive It put the law into action • Prime Minister and his
cabinet
• Government
Departments
• Civil Service

Judiciary It interprets the law, adjudicate Federal Court, the Court

criminal and civil cases, determine of Appeal, the High
the legality of Courts and the
legislature/executive’s act Subordinate Courts.

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B. An Overview of Judicial System in
Malaysia
 Federal Constitution: Power is exercised by the legislative,
the executive and the judiciary.
 The judicial power of Malaysia is vested in the Federal Court,
the Court of Appeal, the High Courts and the Subordinate
Courts.
 Judicial power:
• The power to hear and determine civil and criminal cases;
• The power to pronounce the legality of legislative or executive
acts;
• The power to interpret the Federal and State Constitutions
C. Illustration of the court system /
Hierarchy of Court
Federal Court

Court of Appeal
Superior
Court
High Court (Malaya) High Court (Sabah & Sarawak)

Sessions Court
Subordinate
Court for Children Magistrates’ Court Court
D. The doctrine of ‘binding judicial precedent’

Precedent: A judgment or decision of a court of law,

cited as an authority for the legal principle embodied
in its decision. (other name: judicial decision)

 Binding judicial precedent: The decisions of higher

courts bind lower courts, and some courts are bound
by their own decisions.
E. Jurisdiction of Court
 Jurisdiction: Referring to both civil and criminal
jurisdiction
 See: Attachment 1 (Malaysia legal system) –
Jurisdiction of Court

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