Name : Zakiah Binti Abul Khassim

Email : zakiah.abulkhassim@newinti.edu.my

Contact/Whatsapp : 018-9699224

Extn : 317
Topics to be covered :-

- Historical Development of the legal system and regulation of Media in

Malaysia
- Basic principles of Malaysian Legal System
- Freedom of Speech and Expression
- Defamation
- Invasion of Privacy
- Self Regulation
- Intellectual Property and Plagarism
- Politics and Media
- Online media content
- Obscenity and indecency
- Advertising
Oxford English Dictionary (Lee Mei Pheng, 2005):
'the body of enacted or customary rules
recognised by a community as binding'

Sir John Salmond, Jurisprudence (Lee Mei Pheng,

2005):
'the body of principles recognised and applied by the
State in the administration of justice … law consists
of the rules recognised 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 harmonise the convenient
of oneself and or another

Article 160(2) of the Federal Constitution :

- “Law” includes written law, the common law in so far
as it is in operation in the Federation or any part thereof,
and any custom or usage having the force in the
Federation or any part thereof.
The aims of law:-
• To attain justice
• To encourage the doing of what is right or
just in a particular set of circumstances
CLASSIFICATION OF LAW
SOURCES OF MALAYSIAN LAW
 MALAYSIAN COURT SYSTEM
 CLASSIFICATION OF LAW
LAW

PUBLIC LAW INTER. LAW

(governs the r/ship b/w (Law that prevails betw
individuals & state) PRIVATE LAW States)
(Rights and duties of individuals inter se)

PUBLIC PRIVATE
INTER. LAW INTER. LAW

CONSTI. CRIMINAL
LAW LAW
(Rights of (Offences CONTRACT
individuals
against the TORT TRUST
State. e.g CBT, murder (Rights & (Relationship
in the
Obligations (Offences
State –e.g supremacy obligations between
Of Parliament &
imposed on against
Individuals not that arise by trustee (has control&
Rights of citizen
to commit crime individuals) beneficiary)
agreement)
SOURCES OF MALAYSIAN LAW
 Sources can be:
 Historical sources
- Factors that have influenced the development of the law,
e.g. religious beliefs, local customs.
 Legal sources
- The legal rules that make up the law.
 Places where the law can be found
- e.g. statutes, law reports, etc.
 Sources of M’sian law means – the legal
sources.
 SOURCES OF MALAYSIAN LAW

Written law Unwritten law Muslim law

Federal State English Judicial

Constitution Constitution Custom
Law; Decisions
Legislation
(Laws enacted by P’ment or Common
State Legislative Assemblies Equity
e.g. Acts, Enactments, ordinance)
law

Subsidiary Legislation
(any rule, order, regulation, by-law)
 LEGAL SOURCES

Article 160(2) of the Federal Constitution:

“Written law” includes this constitution and the constitution of any state.

Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) defines ‘written
law’ as:
 The Federal Constitution and the Constitutions of the states and
subsidiary legislation made thereunder;
 Acts of Parliament and subsidiary legislation made thereunder
 Ordinance Enactments (including any federal or state law styling
itself and an Ordinance or Enactment) and subsidiary legislation made
thereunder; and;
 Any other legislative enactments or legislative instruments (i.e;
Acts of Parliament of the United Kingdom) which are in force in
Malaysia or any part thereof.
 LEGAL SOURCES

A. THE FEDERAL CONSTITUTION

- Is a supreme law of Malaysia

- Article 4(1) of the 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”

- The constitution’s supremacy is preserved by

allowing the courts to review legislative or executive
acts.
KEY ELEMENTS OF THE
MALAYSIAN CONSTITUTION

The Malaysia is a There are

constitution is Constitutional three branches
the Supreme Monarchy of Government
Law of a) Legislature
Malaysia b) Executive
c) Judiciary
 A. THE FEDERAL CONSTITUTION

-When the legislative or executive acts violate the constitution, the court
may declare ultra vires (beyond the legal power) and void.
- Matters that can cause this violation are such as:-
a. Matters where the relevant legislature has no power to make law
(Mamat b Daud v Government of Malaysia [1988] 1 MLJ 119) -
only the Federal Court can review this ground
b. The law has not been enacted in conjunction with the procedure as
sets in the constitution (Public Prosecutor v Dato Yap Peng [1987]
2 MLJ311)
c. Any case of state law that the rules are inconsistent with the federal
law (City Council of Georgetown v Government of the State of
Penang[1967] 1 MLJ 169)
 LEGAL SOURCES
LEGAL SOURCES

B. THE CONSTITUTIONS OF THE STATES

It prescribes matters related to the Ruler (i.e; to act on advice), the
Executive Council, the Legislature, the Legislature Assembly, State
employees and amendment of the constitution and financial
provisions.
Article 71(1) of the Federal 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.”
CONSTITUTIONAL AMENDMENT

 Art 159 and Art 161E

 SimpleMajority
 2/3 majority of total members of Dewan Rakyat.

 2/3 majority + Conference of Rulers

 2/3 majority + Consent from YDP Negeri Sabah and

Sarawak
 LEGAL SOURCES
LEGAL SOURCES

C. LEGISLATION
Act of Parliament

Article 73 of the Federal Constitution:

In exercising the legislative powers conferred on it by this Constitution:
(a) Parliament may make laws for the whole or any part of the
Federation and laws having effect outside as well as within the
Federation;
(b) The Legislature of a State may make laws for the whole or
any part of that State.

Article 160(2) of the Federal Constitution:

“Act of Parliament” means a law made by Parliament.
 LEGAL SOURCES
LEGAL SOURCES

C. LEGISLATION
Ordinance and Enactment
Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):

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.

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.
 LEGAL SOURCES
LEGAL SOURCES

C. LEGISLATION
Ordinance and Enactment
- The laws made by the Parliament and State Legislatures must
comply with the manners and provisions laid out in the Federal
constitution.

-The divisions of legislation:-

List I of the Ninth Schedule are legislated by the Parliament
List II of the Ninth Schedule are legislated by the State Legislature
List III of the Ninth Schedule are concurrent matters shared by
the Parliament and State Legislatures
 LEGAL SOURCES
LEGAL SOURCES

D. SUBSIDIARY LEGISLATION
Section 3 of the Interpretation Acts 1948 and 1967 (Act 388):

‘Subsidiary legislation’ to mean any proclamation, rule,

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

D. SUBSIDIARY LEGISLATION
Reasons to have this delegation (Wan Arfah, 2006, p. 49):-

a. The legislature has insufficient time to enact the legislation

b. Many modern legislations involve technical matters
therefore experts must be referred to
c. When the laws need to be made or amended quickly
d. Persons or bodies where powers have been delegated to
them will have the authority to make the changes.
ADVANTAGES AND DISADVANTAGES OF SL

 Advantages
 Save time for Legislatures
 Technical Expertise

 Flexibility and Convenience

 Legislation can continue even not in sessions

 Disadvantages
 Loss of Legislative control
 Bulk and frequent changes
HOW TO CONROL SL?
 Judicial Control
 Court has power to make judicial review and
declared the SL would be ultra vires either
substantive and procedural
 Legislative Control
 Legislature will delegated power by an enabling
statute may repeal the statute or revoke or vary the
delegated power
 Consultation
 Refer to certain professional bodies
 Publication
 Publish the SL
 LEGAL SOURCES
LEGAL SOURCES

Ir Harbans Singh, K.S. (2002), p. 36:

Unwritten law constitutes that part of the local law that is not
recognised as ‘written law’ in the Malaysian context, i.e. it falls outside
the classification afforded under section 3 of the Interpretation Acts
1948 and 1967 (Act 388).

Unwritten law comprises the following:

(a) Case law or judicial decisions of the superior courts;
(b) English common law and equitable principles as applicable in
the local context; and
(c) Customs and usages that have been recognised as
applicable by the Malaysian courts.
 LEGAL SOURCES
LEGAL SOURCES

A. JUDICIAL DECISION
Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 32:

Case law – The law which is created by and appears in the

decisions of the courts.
The decision made by the judge from these courts is known as
‘doctrine of binding judicial precedent’. It is also known as
‘doctrine of stare decisis’

Precedent means ‘decision made by the judge previously in similar

situation’
 LEGAL SOURCES
LEGAL SOURCES

A. JUDICIAL DECISION
-A court must follow the prior decisions (‘ratio’or principle) of a
higher court for the same material facts.

-For example:
“The Supreme Court has made decision in 1987 (Case A).
In 1990, the same case facts and situations have been
brought to the High Court (Case B). The High Court must
therefore decide the case based on the principles governed
by the Supreme Court in 1987”. Under this doctrine,
decision made by higher courts will bind lower
courts” (Wan Arfah, 2006, pp.31-32)
 LEGAL SOURCES
LEGAL SOURCES

A. JUDICIAL DECISION

A few situations where the court may not apply the

earlier precedent can be due to:-
a. The judge in Superior Court overruled the precedence
decided by the lower courts
b. The earlier precedent was arrived at per incuriam
(made in ignorance of a statute or a binding precedent)
c. There are difference material facts between the case
established the precedent with the new one
CASES OF STARE DECISIS
 This doctrine affirms to the case of PP v
Datuk Tan Cheng Swee. Chang Min Tatt FJ
stated ‘… it is however necessary to reaffirm
the doctrine of stare decisis which the
Federal Court accepts unreservedly and
which it expects the High Courts and other
inferior courts in common law such as ours,
to follow similarly…’
 When two conflicting decision of Federal
Court, follow the later decision – Dalip
Bhagwan Singh v PP.
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

- The application of law of England can only be subjected to two
limitations:-
a) With the absence of local statutes on the particular subjects,
English law is applied only to fill the missing part in the
Malaysian legal system
b) 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
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(1)(a) Civil Law Act 1956 states that
courts in Peninsular Malaysia should apply
Common Law and the Law of Equity as
administered in England on 7th April1956.

Section 3(1)(b) and Section 3(1)(c) of CivilLaw

Act 1956 states that courts in Sabah and
Sarawak should apply common law and law of
equity together with the statutes of general
application as administered in England on 1st
December 1951 and 12th December 1949
accordingly
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(i) Common Law

Section 3 of the Interpretation Acts 1948 and 1967

(Act 388) defines ‘common law’ to mean the
common law of England.
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(i) Common Law

-It is mainly made up of non–statutory (non written) laws, which are the
precedents derived from judgments given on real cases by judges (it is
purely from decisions of the courts).

-The British introduced this set of laws to Malaysia through various treaties
with local rulers followed by legislation and decisions by English judges or
judges trained in the English legal system.

- In the earlier time, courts were tasked with the responsibility of

interpreting the Federal Constitution. In undertaking that duty, common
law principles were applied. The words used in the Constitution and its
spirit were developed by judges deciding cases within the structure of the
common law system.
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(i) Common Law

- 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”.
- 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.
- Almost all ex- British colonies have adopted the common law system.
But in each country, the Courts develop their own common law which may
not be identical or similar to the English common law.
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(ii) Equity
(Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 70):

- Is the body of law, formerly enforced in the Court of the Chancellor

of England, aiding, supplementing and correcting the common law.

- “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.
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(ii) Equity
- Developed after many conflicts could not be redressed through the
common law - that is for the King to decide
- 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)
- When there are conflicts between the Common
law and Equity law, the rules of equity shall prevail
 LEGAL SOURCES
LEGAL SOURCES

B. APPLICABLE ENGLISH LAW

(iii) Customary Law
Sinha & Dheeraj, Legal Dictionary, ILBS, Petaling Jaya, p. 51:
Custom – is a rule of conduct which in a given place and
among given groups of persons has been followed for an
appreciable time.
Customs from the local inhabitants such as:-
a. Family law (marriage, divorce and inheritance)
b. Adat in the Malay community
c. Hindu and Chinese customs.
d. Native customary law (in Sabah and Sarawak)
SITUATIONS THAT ENGLISH LAW CAN APPLY

 Suitable for local circumstances

 Case : Syarikat Batu Sinar v UMBC Finance as the
Judge said that ‘…we have to develop our own
common law…by directing our minds to the ‘local
circumstances’ and ‘local inhabitants.’
 Case : Leong Bee v Liang Nam Rubber Works. The
use of Section 3 must be permitted by local
circumstances.
 Absence of local laws
 Case : AG Malaysia v Manjeet Singh Dillon. Absence
of local legislation on contempt of court must be
referred to the English Common Law.
 Cut off date
 Case : Lee Kee Cheong v Empat Nombor Ekor Sdn.
Bhd. Cut off date must be followed
 Case : Jamil Harun v Yang Kamsiah. Any changes
after this date would only rendered as persuasive
and not binding.
 LEGAL SOURCES

-The Syariah law only applies to the Muslims

- It is a sacred law of islam as revealed by Prophet Muhammad s.w.t.
- It is totally based on God’s commands on duties towards Allah and
relationship of one Muslim with another.
 LEGAL SOURCES

- The main sources:-

a. Al-Quran: the words of Allah
b. Sunnah: rules deduced from the traditions (such as sayings
or conduct of Prophet Muhammad s.w.t

- The secondary sources:-

a. Ijma: consensus of jurists of any particular judicial rule
b. Qiyas: deductions from reasoning by ijtihad or anology
 THE JUDICIAL SYSTEM

FEDERAL COURT

COURT OF APPEAL

HIGH COURT HIGH COURT

Malaya Sabah & Sarawak
Syari’ah
Sessions Court Sessions Court Court
Syari’ah
&
Court Magistrate’s Court Magistrate’s Court Native
Court
Small Claims Court Small Claims Court

Penghulu’s Court

42
 Special Courts with special powers

The Special Court was established on March 30,1993 vide Act

A848, now provided for in Article182 of the Federal Constitution.
All offencescommitted by the Rulers (the Rulers being
themonarchical heads of the component states of theFederation
of Malaysia) including His Majesty TheYang di-Pertuan Agong
shall be heard by theSpecial Court.

Other Special Courts :-

Labour Court
Court For Children
Army Court
Tribunals
Royal Commisions
HIERARCHY OF PRECEDENTS

 The functioning of the system of precedents is

based on the hierarchy of decisions and
inevitably the hierarchy of courts.
 The general rule regulating the hierarchy of
precedents is based on the principle that
decisions of higher courts bind lower courts
and some courts are bound by their own
decisions.
ALTERNATIVE DISPUTE RESOLUTION
(ADR)
 ADR - Alternative dispute resolution has greatly
expanded over the last several years to include
many areas in addition to the traditional
commercial dispute in the form of arbitration;
mediation has become an important first step in
the dispute resolution process.
 Commonly describes processes such as
facilitation, negotiation, mediation and early
neutral evaluation, to help disputants resolve a
conflict without a formal decision by a court or
agency.
EXAMPLES OF ADR

 Mediation
 Tribunals

 Adjudication

 Arbitration
1. Lee Mei Pheng (2005). General Principles of Malaysian Law (5th Ed.),
Penerbit Fajar Bakti Sdn Bhd., Shah Alam, pp. 1-2
2. Rau & Kumar (2005). General Principles of the Malaysia Legal System,
International Law Book Services., Petaling Jaya, pp.58-61.
3. Vijayalakshmi Venugopal (2001). Introduction to Law in Malaysia, Sweet
& Maxwell., Petaling Jaya, pp. 2-4
4. http://www.wisegeek.com/what-is-law.htm, search via: google.com
5. http://en.wikipedia.org/wiki/Law_of_Malaysia, search via: google.com
6.http://www1.mmu.edu.my/~husni/government_struc.ppt, search via:
google.com
7. http://en.wikipedia.org/wiki/Procedural_law, search via: google.com
8. http://en.wikipedia.org/wiki/Substantive_law, search via: google.com
9. http://legal-dictionary.thefreedictionary.com/Substantive+Law, search
via: google.com
10.http://www.worldlawdirect.com/article/839/What_is_international_law. html
11. http://topics.law.cornell.edu/wex/International_law
12.http://www.malaysianbar.org.my/press_statements/press_release_comm
on_law.html