INTRODUCTION TO MALAYSIAN LEGAL SYSTEM

 What is legal system?

What is law ? Classification of law

Sources of law (Civil & Islamic)

Court system (Civil and Islamic)

 WHAT IS LEGAL SYSTEM ?

Wu Min Aun defines it as a framework of rules and

institutions within a nation and regulating the individuals relationship with others and between the individuals and government The structure on how the law is implemented and applied

Definition of law Classification of law Sources of law (civil & Islamic)

Court system

 DEFINITION OF LAW
Rules and regulations. The body of enacted or customary rules recognized by a

community as binding-Oxford English Dictionary. The body of principles recognized and applied by the state in the administration of justice- John Salmond, Jurisprudence.

CLASSIFICATION OF LAW
PUBLIC LAW (individuals and the State)

INTERNATIONAL LAW
(law that prevails between States)

PRIVATE LAW (individuals inter se)

PUBLIC INTERNATIONAL LAW

PRIVATE INTERNATIONAL LAW CONTRACT (Rights and obligations that arise by agreement) TRUST (Relationship between trustee and beneficiary) TORT (Offences against individuals)

CONSTITUTIONAL LAW (Rights of individuals in the State)

CRIMINAL LAW (offences against the State)

PUBLIC LAW
The law which governs the relationship between individuals and the State.
Constitutional
Criminal

Law-Lays individuals in the State.

down

the

rights

of

Law-Codifies the various committed by individuals against the State.

ACTUS REUS MENS REA

offences

CRIME

INTERNATIONAL LAW Body of law and rules of conduct which States are bound to observe. Can be created in two main ways: (i) By treaty; (ii)By custom
Public

International between States.

Law-Law

that

prevails

Private International Law-Consists of the rules

that guide a judge when the laws of more than one country affect a case (conflict of laws).

PRIVATE LAW Also known as civil law. Law which affects the rights and duties of individuals amongst themselves.
Contract Law-Consensus ad idem. Tort-Based on an obligation imposed by law ie:

negligence, defamation, assault, trespass.

Trust-An equitable obligation binding a person

(trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries).
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 SOURCES OF LAW
Meaning of the term sources: Historical Sources-Religious beliefs, local customs and opinion of jurists. Legal Sources-Legal rules that make up the law. Places where the law can be found-Statutes, law reports, previous decisions of the courts and text books.

SOURCES OF LAW
WRITTEN LAW UNWRITTEN LAW SHARIAH LAW

Federal Constitution
State Constitution Legislation Subsidiary Legislation

English Law
Common law equity Judicial Precedent Customary Law
East Malaysia Adat Bumiputera Chinese customary law West Malaysia Adat Perpatih Adat Temengung

Al-Quran Al-Sunnah Qiyas Ijma

*Some Shariah law are in the form of State Enactments

WRITTEN LAW The law that have been codified or recognized by the Federal and State Constitution and embodied in a code or statute including subsidiary or delegated legislation.
Federal Constitution Supreme law of the land, together with the Constitution of the 13

states comprising the Federation. Laying down the powers of the Federal and State Governments and also enshrines the basic or fundamental rights of the individual. This Constitution can only be amended by a two-thirds majority of the total number of members of the legislature. State Constitution Each State possesses its own constitution regulating the government of that State. The State Constitution contains provisions which are enumerated in the Eight Schedule to the Federal Constitution. Article 75 of the Fed Cons-If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.
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 Legislation Law enacted by a body constituted for this purpose.

Parliament at federal level and by the various State Legislative Assemblies at state level. Laws enacted by Parliament after 1946 but before 1957 are called Ordinances, laws enacted after 1957 are called Acts, laws made by the State Legislative Assemblies (except is Sarawak) are called Enactments) and the laws in Sarawak are called Ordinances. Subsidiary Legislation Defined by the Interpretation Act 1967 as any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect.
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 Constitution of Parliament-Article 44 of the Fed

Cons: The legislative authority of the federation shall be vested in a Parliament, which shall consist of the Yang Di-Pertuan Agong and Two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).

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YDPA

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DEWAN RAKYAT

DEWAN NEGARA

PROCEDURE FOR THE ENACTMENT OF AN ACT OF PARLIAMENT

FIRST READING
When a Bill is first introduced in one of the two houses, only the title is actually read. After the Bill is passed at this stage, the text is printed and distributed.

SECOND READING
Members debate the Bill. If accepted, the Bill is passed on for consideration by a committee of the house.

A COMMITTEE OF HOUSE

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Considers the Bill in detail and may amend any part of it. The Committee then submits a report on the Bill to the house. If the report is approved, the Bill goes on to a third reading in the House.

OTHER HOUSES

ROYAL ASSENT

When the Bill has passed both Houses in accordance with Art. 68 (Fed. Consti.), it is sent to the Yang Di-Pertuan Agong for the Royal Assent. The Bill then becomes a law upon publication.

When a Bill has passed one House, it is sent to the other house, where it follows a similar pattern. If the second house amends the Bill, the Bill must be returned to the first house for its approval

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THIRD READING

Debate takes place and amendments may be put to a note. The House then either passes or 15 defeats the Bill. 15

Accepted D.R.36/2010 2010 Supply Bill 2010

Dibentang Pada

15/10/2010

Dibentang Oleh

Y.A.B. Dato Sri Hj. Mohd Najib bin Tun Haji Abdul Razak, Prime Minister and Minister of Finance

Disokong Oleh

Y.A.B. Tan Sri Dato Haji Muhyiddin bin Mohd Yassin, Deputy Prime Minister

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UNWRITTEN LAW

A convenient reference to that portion of Malaysian law which is not enacted by the legislature (Parliament and the State Assemblies) and which is not found in the Constitutions, both Federal and State. 1) English Law-Has been received in Malaysia and it is done either expressly or by implication. Section 3(1) of Civil Law Act 1956-Where the court is required to apply (a) in West Msia or any part thereof..the common law of England and the rules of equity as administered in England on the 7th of April 1956, (b) in Sabah.the common law of England and the rules of Equity, together with statutes of general application, as administered or in force in England on the 1st of December, 1951 and (c) in Sarawak...the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th of December, 17 1949.

 Section 5 (1) CLA 1956-Application of English Law in

commercial matters in the States of West Malaysia other than Malacca and Penang.the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law. Section 5 (2) CLA 1956-Application of English Law in commercial matters in the States of Malacca, Penang, Sabah and Sarawak.the law to be administered shall be the same as would be administered in England, in the like case at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.
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 The application of English Law is subject to two

limitations It is only applied in the absence of local statutes covering the same matter (only to fill in the lacuna in the local system) Only that part of the English Law that is suited to the local circumstances will be applied.

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Common Law & Equity

Common Law-Also known as judge-made law.

Refers to law laid down by judges sitting in the superior courts as distinct from statute law enacted by the legislature. common law. It originated from the English Law. It was developed out of the need to provide the plaintiff with relief where the strict common law rules granted as an unsatisfactory remedy or no remedy at all.

Equity-Was introduced to reduce the harshness of

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The pre-requisites to obtain equitable relief He who comes to equity must come with clean hands; Equity is equality; Equity follows the law; Delay defeats equity and etc. Sec 3(2) of the Civil Law Act 1956 provides that in the event of conflict or variance between the common law and the rules of equity with reference to the same matter, the rules of equity shall prevail.

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2)Case law/doctrine of binding precedent/doctrine of stare decisis

Case Law-Refers to past cases or case report eg:

Malayan Law Journal and Current Law Journal. It refers to judicial decision of the court which is refer by the latter court as a guide to decide future case as similar facts and situation-Land mark to other cases. Case Law become as sources of law according to doctrine of binding judicial precedent/Doctrine of stare decisis.

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DOCTRINE OF BINDING JUDICIAL PRECEDENT (STARE DECISIS)

Meaning of precedent -Original -Declatory

Principle of the Doctrine

Application- -Advantages -Disadvantages Msian Hierarchy of Courts

Ratio Obiter Decidendi Dictum

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Meaning-Can be said as previous cases or decisions which may be taken for making a decision in the future cases in a similar facts or similar circumstances. Two types of precedentOriginal-New made law or can be said as a case that have not occurred before. It can used for the future court to decide if the same matter arise. Declaratory-Previous cases or decisions that may be taken as an example for deciding if the same matter and circumstances arise again.

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Every decisions reached must be reported together with the reason for deciding (Ratio Decidendi)Ratio Decidendi- Reasons or principles of deciding. Obiter Dictum-Things said by the judges which is not relevant to the case but can be a reference if the same thing (what the judge comment) arise in the future. It does not form part of the ratio decidendi but may be cited in later cases.

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PRESENT HIERARCHY OF COURTS IN MALAYSIA

Federal Court Court of Appeal High Court Sessions Court Magistrates Court Penghulus Court
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Two main principlesThe inferior courts are bound by the decisions of the superior courts. Some courts are bound by their own decisions.

ADVANTAGES AND DISADVANTAGES

Advantages Follow the interpretation set out by the higher courts. Easier for reference. Guide for the future court and judges. Safe time and money. The decision is consistent. Lawyer will be able to brief us the possible outcome of the cases that we are having based on previous cases.
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 Disadvantages Takes a lot of time in interpreting the cases. It will stop the development of the law.

Problem of finding the ratio in particular

case. Problem of bulk and complexity.

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CUSTOMARY LAW

Refers to norms, behaviours, practices and beliefs which is carried by one generation to another WHICH HAS A BINDING AND LEGAL IMPACT. It is not specific and may be different to one another.

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West Malaysia Adat Temenggung A mixture of Islamic and Hindu Law which is head by the Sultan or the Raja. This Adat is related to family matters like the division of the property (the eldest son will inherit). Adat Perpatih Influenced by the Minangkabau. Practiced in Negeri Sembilan and Naning, Melaka. The leader here is the Yang Di-Pertuan Besar, followed by Lembaga, Buapak and Undang. Every family has a leader. This Adat involves separation, marriage and inheritance. If you committed something wrong under this Adat you have to pay for compensation.

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Chinese and Hindu Customary LawDeals with inheritance, marriage, division of property and divorce. It is recognized under the civil law and matter that arise will go to civil court.

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East Malaysia Adat Melayu For those who are Islamic in religion. The Shariah Courts in East Malaysia is not similar with West Malaysia. Adat Bumiputera Known as the Native Law. It is establish under the State Ordinance. Chinese Customary Law Applied only in Sarawak. Does not cover all area, particularly in regards with the division of property. Eg: Chinese Marriage Ordinance.

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SYARIAH/ISLAMIC LAW
Major source of Malaysian Law but only applicable to Muslims. It is administered by a separate Shariah Courts. Article 3 of Fed Cons-Islam to be the religion of Malaysia but other religions may be practiced in peace and harmony.

Al-Quran A book of Allah sent to the last prophet, Nabi Muhammad S.A.W. Contains the knowledge imparted by Allah and the guidance for mankind for all time to come. Consists of many matters including everyday life, marriage, divorce, inheritance of property and etc. Primary source of Islamic Law but not detail.
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Hadith and Sunnah The section filler after Quran upon which every Muslim rest his faith and life with. It literally means a saying conveys to man either through hearing or witnessing an event. The record of saying were called Hadith. Any Hadith that goes contrary to the Quran is not to be considered as authentic. Sunnah is an Arabic word which means method which was applied by our Prophet as a legal term comprising what he said, did and agreed to as express and defined in the Quran.

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Ijma Basically, it is a decision made through the discussion between Nabi Muhammad S.A.W and his companions. Can be defined as a consensus or opinion of the companions of the prophet and the agreement reached on the decision taken by the learned Mufti or the jurists on various Islamic matters.

Qiyas Defined as analogy or analogical deduction. A legal principle introduced in order to decide logical confusion of a certain issue that has to do with the welfare of the Muslims. In exercising this, it must be based on the Quran, Sunnah and Ijma.

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SYSTEM OF COURTS (CIVIL AND ISLAMIC)

Federal Court

Court of Appeal
High Court

Superior Courts

*All of these courts have civil and criminal jurisdiction.

Sessions Court
Magistrates Court

Penghulus Court

Subordinate Courts

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COMPOSITION OF COURTS
Federal Court The FC consists of the Chief Justice, the President

of the Court of Appeal, the Chief Judge of Malaya and Chief Judge of Sabah and Sarawak and six Federal Court judges. Court of Appeal The COA constitutes the President of the Court of Appeal and up to ten Court of Appeal Judges. High Court Consists of two Chief Judges, one in Peninsular Malaysia and one in Sabah and Sarawak. Sessions Court It is under the charge of the Sessions Court judge. Magistrates Court This court is presided over by a Magistrate. Penghulus Court It is presided over by a penghulu.

 SYARIAH APPEAL COURT

SYARIAH HIGH COURT

SYARIAH SUBORDINATE COURT

Islamic Law is applied in Malaysia to a limited extent. (Art 3 FC). Syariah Courts administer Islamic Law regarding for instance matrimonial matters, succession and Syariah offences. Article 121(1A) of the Federal Constitution- The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

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