Download - Law & Its Basic Functions

By: Sharifah Mazwin Syed Abu Bakar, Advocate & Solicitor, High Court of Malaya

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Law & Its Basic Functions

GSM 5131BUSINESS LAW & ETHICS

PUTRA BUSINESS SCHOOL


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Content

• What is Law?• Classification of Law• Sources of Law• Judicial System• Alternative Dispute Resolution • Law, Justice & Morality


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What is “Law”?


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What is Law?

• A set of rules developed over a period of time• Recognised by a community as binding• Regulates interaction between people,

institutions and corporations• A system enforced by the “State” by way of

sanctions• What is a State? A collective almost entirely

built on the basis of a political unit


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Classification of Laws• 3 Main World Legal Systems:-

– Civil Law – codified – Common Law – case law– Socialist Law – public law

• Also based on Religious or Belief System– Islamic – Quran & Sunnah– Hindu – Doctrine of proper behaviour– Talmudic – summary of oral law over centuries of scholarly effort by

sages in Babylonia distinct from the Torah (written law)– Sino-Soviet – Karl Marx – eradication of personal rights, absolute

state right– Others?


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Classification of Laws

• Convergence of Civil & Common Law– Systems with Codified laws referring more to

caselaw– Systems with Caselaw codifying more laws

• Common law system– Public law– Private law– International law


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Classification of Laws• Public Law

– Relationship between people & State– 2 categories

• Constitutional Law – righs of citizens vs State powers• Criminal Law – codifies offences by citizens based on actus reus (wrongful act) & mens rea

(unlawful intent)

• Private Law– Relationship between private individuals eg Contract (set of promises between parties),

Trust (equitable obligation over property in favour of beneficiaries), Tort (a civil wrong by way of breach of duty intentionally or negligently)

• International Law– Relationship between states as recognised by it– Public International Law – Customary rules, treaties & conventions that prevails

between States– Private International Law (“conflicts of law”) - Rules that guide a judge when laws of

more than 1 country affects a case

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What is “State” of Malaysia• All Laws enforced by “State”• Malaysia - 13 states & 3 FT• Central Govt & State Govt• Consitutional monarchy based on UK – Agong is constitutional

head of federation. Elected by conference of rulers every 5 year rotation between the 9 rulers & 4 Governors (Yg Dipertua negeri)

• Conference of Rulers meets every 4 years – link between state & federal so menteri besars always attend

• Duties of CoR – elect Agong & Deputy, discuss ntional policy, consent of law, advice on apmts that consitutionally require their consent



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Malaysia’s “State” Structure

YDPA

Federal Government

Dewan Rakyat Dewan Negara

State Government

State Legislative Assembly

Sate Executive

Councillors


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Sources of Law in Malaysia• Malaysian Law based on Common Law Principals• Where is it derived from?

– Historical sources (religious belief, local custom, opinion of jurists)• Integration of Legal sources (rules & laws), Depository (statutes, reports,

reference texts), common law, Syariah law & customary law, Statute Law• Definition of Law in Malaysia:- • Art 160(2) Federal Constitution 1957• S.2(1)(43C) Interpretation and General Clauses Ordinance 1948

– Written Law– Common Law (in so far as it is in operation in the Federation or part of

it)– Any custom or usage having the force of law in the Federation or part

of it


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Sources of Law• Written – Federal & State Constitution, Acts, Subsidiary

Legislation (Rules & Regulations), confirms common law• Unwritten – English Law (common law), caselaw (refce

also to commonwealth countries), customs accepted as law

• Islamic Law – Finance & Banking (Central Bank Act, Financial Services Act), Land (Stamp Act & State Land Offices), Trade (Bursa), Insurance (no separate Takaful Act)

• International Treaties & convention – expectation of conformity once ratified even without enabling Legislation


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Sources of Laws - Application• Written Law

– Remain until repealed, broad terms, provide for subsidiary legislation (rules & regs)

– Subject to Interpretation by Interpretation Act, Extrinsic materials (travail preparatoire) , definition in Act, common law rules of Interpretation (Literal, Golden Rule, Mischief), precedent, maxims – to reflect purpose or intent of Act

– May impute meaning or words into Act if feel Parliament failed to deal with matter required to be dealt with to achieve purpose of Act subject to satisfaction of test Birmingham v Corrective Services Commission of New South Wales [1998] 15 NSWLR 192

– If words clear – effect given even if end result absurd


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Sources of Laws - Interpretation• Literal meaning Approach– Whole Act read, words read in context of whole Act, not in

isolation• Golden Rule Approach– Fischer v Bell [1961] QB 394 – plain meaning of word unless vary

from intent of Act or lead to repugnance, injustice or absurdity• Mischief Approach– Lee v Knapp [1967] 2 QB 442 – where literal approach not poss,

look at law before Act, overall intention of Act as a whole, any mischief remedied? Goes beyond examples in Act (usually not in eg, not covered)


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Sources of Laws - Interpretation

• Legal Maxims – aids to construction– noscitur a sociis – “association” ie where word is

ambiguous, consider it with words which it is associated to in the context• Prior v Sherwood [1906] 3 CLR 1054

– Ejusdem generis – “same class” ie the word is limited to the same class to/type as the specific words preceding it


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Sources of Law - Written• Written Constitution – enshrines powers of Federal & State

Govts & rights of the people • Federal Constitution & State Constitution (in 8th Sched of FC)• Status - Art 4 – Fed Con is supreme law of federation• Art 4(1)- FC supreme law of the land & laws after Merdeka

inconsistent with it is void• Art 162(6)- inconsistent laws pre merdeka, to be modified so as

to be inconsistent by ct or tribunal• s.73 of Malaysia Act 1963 (effected by Art 159A of FC) – pre

Malaysia laws enacted by a state survive only in so far as that state – yardstick to measure validity of all other laws of land


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Sources of Law – Federal Constitution

• Art.73 of FC – confers legislative powers on Parliament & State Legislative Assembly

• Legislative & executive powers divided between Central & State Govt via Arts 74 & 80 of Federal Constitution (FC)

• Division of powers - 5 lists in 9th Sched of FC– Federal List (I)– State List (II)– Concurrent List (III)– Supplement to State List for Sabah & Sarawak– Concurrent List for Sbh & Swk – Supplement to Concurrent Lists for Sbh & Swk


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Sources of Law – Legislation• Art 74 - Parliament enact legislation in Federal & Concurrent

List – Federal List - external affairs, defence, internal security, civil & criminal

law & procedure, admin of justice – called Ordinances before and Acts after 1957

• State Legislative Assemblies legislate in State & Concurrent Lists – called Enactments. Sarawak called Ordinances– State List - Islamic law, land, agri, mining, local govt, state works &

water, state holidays, offences against state law (native law, ports & harbours – In supplementary state list for Sabah & Sarawak)

• Concurrent List – matters of common concern (social welfare, town & country planning, pubic health, scholarships, drainage & irrigation).


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Sources of Law -Legislation Process (Enactment)

• By virtue of Art 44 – enactment carried out in Parliament – YDP Agong (YDPA), Dewan Rakyat (DR), Dewan Negara (DN)

• Bill must be passed by both DR & DN• Thereafter assented to by YDPA• Process:-

– Consultation & Drafting by AG’s Chambers with stakeholders– Parliamentary Stage – debates & votes through readings in both

houses– Special cases – Select Ad Hoc Committee to get public feedback– Royal Assent– Enforcement by Gazette in Warta Kerajaan


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Sources of Law – Legislation

• If Parliamentary Acts inconsistent with Federal Constitution can be challenged in court.– Thian vs Govt of Malaysia:

• Suffian L.P. -The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State Legislature in Malaysia is limited by the Constitution and they cannot make any law they please”

– R Rethana v Govt of Malaysia & Anor [1998] 1 MLJ 133• S.31 & 42 of Socso found not contrary to right to sue under FC as it was found to

be fair & reasonable – Repco Holdings Bhd v Public Prosecutor [1997] 3 MLJ 681

• Gopal Sri Ram JCA - Locus standi of prosecution officers under s.126(2) of Securities Industries Act ad S.39(2) of the Securities Commission Act ultra vires Art 145(3) of FC so void & unsconstitutional by virtue of Art 4(1). Inconsistent with FC


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Sources of Law – Legislation• If Parliamentary Acts inconsistent with State Enactments for

matters within the purview of the State Law:-– Mamat Bin Daud v Govt of Malaysia [1988] 1 MLJ 119

• S.298A Penal Code states an act is an offence if likely to prejudice unity amongst Muslims. Facts:- unauthorised Khatib at Friday prayer in Terengganu as required under State Enactment

• Held:- pretend to be a public order law but should be under purview of State therefore S.298A invalid, null & void and of no effect. Parliament no power to legislate on this matter

• Art 4(3) FC – if ground is ultra vires powers, then challenge can only be mounted, if Parliamentary Law, in Fedn v 1 or more State proceedings; if State Law, in Fedn v that State proceedings


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Sources of Law – Legislation• Art 4 (4) FC –proceedings other than Art 4(3), need leave of

Federal Court to challenge – Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3

MLJ 23• Bakun Dam Project – Objection by natives based on fact that an

EQ Order 1995 excluded requirement of an EIA Report in Sarawak. It was argued by Govt that although production, supply & power is in Concurrent List, the “environment” is sole purview of State in question so EQA tho expressed to apply to whole of Malaysia, does not apply to Sarawak . Gopal Sri Ram JCA – Agreed. Also, to challenge a law, proceedings must be pursuant to Art 4(4) read together with Art 128 FC. i.e. if challenge is Parliament exceeded it powers, then must be by way of leave of FC


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Sources of Law – Legislation• Art 75 states – Fed govt prevails if there is inconsistency between

Fed & State Laws – State has power to enact laws which are in the relevant List in the 9th Schedule & outside the purview of Parliament• City Council of Georgetown v Govt of State of Penang [1967] 1 MLJ 169

(FC) - State law inconsistent with fed law • Excptn:- • Art 76 – Parliament allowed to legislate in State List eg to

implement international agreements and promote uniformity of law• Art 150 – Parliament granted far-reaching powers in an emergency• Unequal sharing of power – favour fed govt• Legislation becoming more important than case-law or precedent


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Sources of Law - Subordinate Legislation

• S.3, Interpretation Act 1948 & 1967 (IA)– All proclamations, rules, regulations, orders, notifications, by-

laws or other instruments made under any Act, order, lawful authority & have legislative effect

• Parliamentary Acts provide powers and are drafted in broad terms in order to carve out parameters of the subject matter in question

• Details are delegated to the executive branch who create subordinate legislation

• However such legislation made without any consultation, discussion, a sub-delegation, debate or vote

• S.23(10 & 87(d) of IA – void if inconsistent with the Principal Act or State Enactment


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Sources of Law - Subordinate Legislation

• Remedy – Judicial Review – doctrine of ultra vires of powers• Grounds for review

– Substantive– Procedural

• Other methods of Legislative Control– enabling statute requires legislation to be presented before legislature

for confirmation/information. Eg Trade Marks Act and Trade Unions Act– Consultation – enablings Act makes consultation compulsory– Publication - rare


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Sources of Law – Subordinate Legislation

• Art 150 exception to Conflict between Fed v State Laws – Eng Keock Cheng v Public Prosecutor [1966] 1 MLJ 18 (Federal

Court) – convicted under ISA and stced to death. Appealed: 1) HC had no authority

as no prelim enquiry/jury as required by the then CPC, 2)proced under Emergency Regulations ultra vires Art 8 of FC – all persons equal before law & entitled to equal protection

– Held: save for exceptions in Art 150, Parl can enact any laws on any subject to any effect, whether inconsistent with FC. In this case, the Act in question even had specific provision to that effect ie cannot be challenged on ground of inconsistency. Includes the right to delegate part of that power to other authority. Extensive powers including to enact special provisions for procedures in criminal cases not an abrogation of powers of Parliament as Emergency can be terminated by resolution of both Houses.


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Sources of Laws - Unwritten

• Unwritten Law–English Law–Judicial Decisions/Precedents–Customs


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Sources of Law – Unwritten• Customs of local inhabitants given legal force in Malaysia• British Common Law tradition - Introduced to straits

settlements thru Royal Charters if Justice, later extended to Malays states thru administrative arrangements – legislation on specific matters – 1937, formalise by enabling legislations – same as Borneo

• Common law replaced Malay adat and syariah law as basic law of the land – reduced to law concerning family and religious personal matters to Muslims only

• 1948 onwards – 2 parallel courts, civil & Islamic courts


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Sources of Law – Unwritten

• Aboriginal, Chinese, Hindu, native customary laws recognised but reduced to personal & family matters

• Since Law Reform (Marriage and Divorce) Act 1976 (Act 164) – intro common system of solemnisation & registration of marriage without prejudice to recognition of customary contracts of marriages before the Act enforced in 1982, but not recog after

• Borneo – native customary laws still vibrant and survive under a System of Native Courts


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Sources of law – English Law• S. 3(1) Civil Law Act 1956 (Revised 1972)

– Peninsular Malaysia – courts shall apply common law & rules of Equity as administered in England on 7 April 1956

– Sabah & Swk – common law, rules of equity & statutes of general application as administered on 1 Dec 1951 & 12 Dec 1949 resply

– In spite of S.3(1) CLA - Commonwealth of Australia v Midford (Malaysia) Sdn Bhd & Anor [1990] 1 MLJ 475• S.3(1) CLA does not mean English common law & rules of equity should

remain static. The doctrine of sovereign immunity which developed after 1956 should apply to Malaysia too.

• S.3(2) CLA – in the event of conflict, rules of equity will prevail over common law


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Sources of Law – English Law• Conundrum of English Statutes in Peninsular Malaysia – divergent views

from Midford Case– Mokhtar v Arumugam [1959] MLJ 232 – could not award interest avail

under subsequent English Act by virtue of S.3(1) CLA – Smith Kline & French Laboratories Ltd v Salim (Malaysia) Sdn Bhd [1989] 2

MLJ 380 – obiter dicta:- if provisions of imported legislation are inapplicable in a country, then the court has & will exercise jurisdiction to strike it down

– Jamil bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217- Privy Council case, up to courts in Malaysia to decide whether to follow English Law, regard to circumstances in Malaysia, careful to apply only what is permitted by law & no further than what is just to do so

– Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544-English Law cannot be applied in criminal procedure.


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Sources of Law – English Law• Application of English Law still subject to 2 limitations:-

– 1) applied only in absence of local statutes on the subject matter - lacunae– 2) only parts which are suitable to local circumstances will be applied –

proviso to S.3(1) CLA• Chou Choon Neoh V Spottiswoode [1869] 1 Ky 216 –to apply English

Law with such modifications as to prevent from operating unjustly & oppressively, inapplicable since will result in absurd & intolerable consequences

• Syarikat Batu Sinar Sdn Bhd & Ors v UMBC Finance Bhd & Ors [1990] 3 MLJ 468 – direct mind to local inhabitants or circumstances. Cannot follow English Law as Malaysian Law & practice (quasi law) requires endorsement of ownership on registration card of vehicle – cannot reposses since no such endorsement


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Sources of Law – English Law• S.5(1) CLA – in Peninsular (except for Penang & Melaka) English

Commercial Law applies as it stood on 7 April 1956 in absence of local legislation

• S.5(2) CLA – in Penang, Melaka, Sbh & Swk, English commercial Law applies as it would in England, in the absence of local legislation. • Kon Thean Soong v Tan Eng Nam [1982] 1 MLJ 323 – English Law of

Partnership not apply as Malaysia has own statute• S.6 CLA – specifically excludes English Land Law & rules of equity

related to land– United Malayan Banking Corporation Bhd & Anor v Pemungut Hasil

Tanah, Kota Tinggi [1984] 2 MLJ 87 – equitable rules of relief against forfeiture not available to proprietors of alienated land in Malaysia – National Land Code applies.


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Sources of Law – Judicial Decisions/Precedents

• Judicial decisions made in courts of law – authority for legal principal embodied in its decision, evolution of common law & equity

• Doctrine of Stare Decisis (binding precedent)– Heirarchy of Precedence

• Vertical – courts bound by prior decision of higher court• Horizontal - courts bound by its own prior decision or decision of court of same level

(coordinate courts)– Consistent, coherent, certainty, equality & fairness to similar cases, however,

circumstances change but court bound to follow, require Act of Parlm to change

– Exception• Distinguish on facts, material differences • Decision per incuriam ( in ignorance of earlier precedent)• Decision inconsistent with higher court but not expressly overruled• Decision of lower court pending appeal


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Sources of Law - Precedent• Case law comprise of the following:-• Res judicata

– Judgement of the court ie final order of court binds immediate parties to the proceedings

• Ratio Decidendi– Reason for the decision

• Obiter dictum• Anything said about the law in the course of judgment which is not on

matter/issue at hand – no binding power but persuasive• Persuasive precedent decisions of coordinate or higher standing from

other jurisdictions – judicial comity• Original precedent, declaratory precedent


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Sources of Law - Precedent• Heirarchy of Courts in Malaysia evolved• Judicial Committee of the Privy Council – highest court until

1978 limited to civil appeals, Federal Court highest domestic court,

• 1987 – Federal Court abolished & Supreme Court highest court

• 1994 – Supreme Court abolished & Federal Court reinstated, Court of Appeal created

• Singapore Courts’ decisions when part of Malaysia • 2013 – Subordinate Courts’ jurisdiction expanded & Penghulu

Court abolished


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Sources of Law – Precedent • Privy Council decision binding on Federal Court & High Courts even if

appeal from Commonwealth country– Khalid Panjang & Ors v Public Prosecutor (No 2) [1964] 30 MLJ 108

(Federal Court) – C’wealth law same or similar law• House of Lords decision binding on Federal Courts of Malaysia

– DG of IR v Kulim Rubber Plantations Ltd [1981] 1 MLJ 214 216 - Affirmed Khalid Panjang case. Cited Lasala v Lasala [1979] 2 AELLR 1146 where Privy Council said to be bound by House of Lords so this principal extends to House of Lords decisions. Judicial comity to pay due & proper attention to them, persuasive authority unless can distinguish them or hold them per incuriam NB. HL decisions now bound by Civil Law Act 1956

• Privy Council of England not bound by its own decisions– Read v Bishop of Lincoln [1892] AC 644


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Sources of Law – Precedent • Court of Appeal of England bound by its own previous decision & courts of

coordinate jurisdiction– Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 - CA bound to follow its own

previous decision and courts of coordinate jurisdiction save:-If there is conflict of decisions, CA can choose, a decision tho not expressly overruled cannot stand with Priviy Council decisions, decision per incuriam of Priviy Council decision

• Court of Appeal of Malaysia bound by its own– Hendry v De Cruz [1949] 15 MLJ Supp 25 (Court of Appeal) - CA bound by its own

previous decision following Young v Bristol Aeroplane Case• Federal Court of Malaysia bound by its own decision

– Re Lee Gee Chong Deceased (1965) 31 MLJ 102 (Federal Court) - FC bound by decision of Re Lee Siew Kow, Deceased a decision made by Singapore Court of Appeal, considered same as then Federal Court of Malaysia by virtue of s.88(3) of Malaysia Act. Affirmed Young v Bristol Aeroplane Case in relation to FC


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Sources of Law - Precedent• Defining case on conduct of judges in creating precedent

PP Kok Wah Kuan [2007] 6 CLJ 341, Federal Court, Richard Malanjum CJ (Sabah & Sarawak) Held:Role of judges goes beyond mechanical interpretation of pre-existing law – also consultative & creative and direct themselves to the following principals:-

• Formulating original precedents – rely on customs & traditions of land and stds & principals of justice in life of community when formulating ori precdnt

• Overruling earlier precedents – judicial creativity in play to overrule earlier precdnt, retrospective or prospective – creates new legal principals & new direction.

• Constitutional Review – Art 4(1) and 128 of the FC allows for judicial review of legislative & executive actions – can invalidate the whole statute or part of it by way of doctrine of severability, ab initio or form date of ruling. Art 162(6) allows court to modify pre-Merdeka laws


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Sources of Law - Precedent• PP Kok Wah Kuan [2007] 6 CLJ 341 (continued):

• Statutory Interpretation – Rules on Interpretation wide & includes travail preparatoire – judicial discretion to apply one or another rules of interpretation of statutory construction, foreign law if in pari materia, local law in isolation if declared sui generis (in local context only without foreign decisions),may even consider moral or public policy if feel appropriate. Need not view statute in isolation – can view entire spectrum of law in light of precedents, related statutes, presumptions, principles, doctrines & standards in the society.can imply laws & crystalised the inherent. Definition of law revisited.

• Operation of doctrine of binding precedent – limits judicial choices, bound by precedent but some flexibility & maneuverability exists. Judges have refused to follow its coordinate courts, Federal Courts have overruled itself and inferior court refused to follow higher court indirect technique


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Sources of Law - Precedent

• PP Kok Wah Kuan [2007] 6 CLJ 341 (continued):• Doctrine of ultra vires – statute may declare power

absolute or decision final & conclusive but statute on broad terms. Judge may interpret literally or infer implied limits & constitutional presumptions in the rule of law to restrict scope of unlimited powers. Subjective powers viewed objectively, purposive interpretation favoured over literal. Procedural issue – if mandatory, violation nullify act, if directory, violation is curable• Import Rules of Natural Justice - Non-statutory standards

of procedural fairness. Wide discretion of what to apply and to what extent.


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Sources of Law - Precedents• Advantages

– Realistic & practical applications as based on actual dispute & facts– More flexible as law evolves based on case by case, legislation generic,

rigid & time consuming– Can escape Stare Decisis if can distinguish facts before him– Can overrule lower court decision if feel wrongly decided– Richly detailed with arguments from all parties & involves discussion of

merits of earlier cases – creativity of judge• Disadvantages

– Numerous & diverse cases, danger of missing relevant precedent, needs extensive research

– Need to distinguish between ratio decidendi v obiter dicta – usually from issues arising & being considered


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Sources of Law - Custom

• Peninsular Malaysia– Adat perpatih – Malays in Negeri Sembilan, Naning in

Melaka –on land tenure, lineage & election of Lembaga, Undang & Yamtuan Besar, matrilineal inheritance

– Adat Temenggong – other states. Patrilineal inheritance• Sabah & Sarawak– Native Customary Laws applies in land dealings & family

matters – adjudicated in Native Customary courts


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Judicial System – as of 2013

Federal Court

Court of AppealHigh

Court of Malaya

Sessions Court

Magistrate’s Court

Syariah Courts

Juvenile Courts

High Court of Sabah &

Sarawak

Sessions Courts

Magistrate’s Courts

Syariah Courts

Native Customary

Courts

Juvenile Courts

Superior Courts

Subordinate Courts


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Judiciary - Jurisdiction

• Superior Courts– Art 121 FC – establishment of Superior Courts– Courts of Judicature Act 1964 (Act 91) (Revised

1972) (CJA 1964) – govern powers & jurisdiction• Subordinate Courts– Established by and derived their jurisdiction &

powers by Subordinate Courts Act 1948– Limited & prescribed jurisdiction – Controlled & supervised by superior courts


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Judiciary - Jurisdiction

• Both Courts vested with general jurisdiction over civil, criminal, private & public disputes

• Syariah Courts – Constitution (Amendment) Act 1988 added art 121(1A)

which removed the Syariah Court from the jurisdiction of these courts – ltd to marriage & family

• Other Courts – established by specific Acts for specific jurisdiction - Juvenile Courts, Special Courts for Malay Rulers, Native Courts, Penghulu Courts (now abolished)


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Judiciary - Governing Principals• Doctrine of Separation of Powers between Legislative, Excecutive &

Judiciary• PP v Kok Wah Kuan [2007] 6 CLJ 341, Federal Court

– 12 year old convicted of murder & sentence to detention at the pleasure of YDPA. Appealed on grounds S. 97(2) of Child Act where Parliament consigned the measure of sentence to be served at the pleasure of the YDPA/YDPN as the case may be contravene this doctrine & therefore unconstitutional. CA upheld conviction but sentence set aside & released because accepted grounds & no alternative penalty. PP appealed:- amendment to Art 121(1) of FC – no longer express separation of powers of judiciary & executive/legislature – jurisdiction only in so far as granted to it by Federal law – so Child Act not invalid nor unconstitutional. Regardless of basis of our formation & intention behind framers of Constitution, the doctrine no longer part of Malaysia. The penalty in question is in lieu of death sentence.

– However, take cognisance of Richard Malanjum CJ’s advice to judges on judicial conduct in presiding over cases.


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Judiciary – Conflict of Jurisdiction• Wan Khairani Wan Mahmood v Ismail Mohamad & Anor

[2007] 6 CLJ 582, Court of Appeal– Defendant is subject to action for harta sepencarian in Syariah

Courts due to his divorce. Ex-wife took out Injunction to prevent defendant from disposing of his share of proceeds from acquisition of land owned by his company which he appropriated personally.

– CA upheld injunction – efficacy of jurisdiction of syariah courts would not be impaired if civil court determine issues on company transaction. Further this is not strictly concerning matters of faith but on commercial transaction involving Muslims. Ct able to exercise jurisdiction without violating Art 121(1A) of FC.


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Judiciary – Conflict of Jurisdiction• Wan Khairani Wan Mahmood v Ismail Mohamad & Anor

[2007] 6 CLJ 582, Court of Appeal (continued)– Followed Majlis Ugama Islam Pulau Pinang & Seberang Prai v Shaik

Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289, FC which referred to Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v Faridah Bt Dato Talib [1993] 1 CLJ 264, SC – Art 121(1A) resolved conflict of jurisdiction between syariah & civil courts.

– Islamic law matters exclusive jurisdiction of former. Dalip Kaur Gurbux Singh v Pegawai Polis Daerah(OCPD), Bkt Mertajam & Anor [1991] 3 CLJ 2768- Art 121(1A) takes away jurisdiction of civil courts iro matters within syariah courts but it does not take away jurisdiction of civil courts to interpret any written law of the states enacted for administration of Muslim Law.


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Judiciary – Developments in Conflict

• This doctrine of interpretation has sometimes resulted interesting developments:-

• Abdul Wahab Patail in Arab Malaysian Finance Berhad v Taman Ehsan Jaya– started interpreting Islamic Finance & Banking structures but using conventional banking principals hence decided that defaulters need not pay full amount due to bank under “profits” as it is “unearned” – has created 2 trains of thought & judicial decisions – created confusion amongst practitioners & bankers. Civil courts applied common law principals & rules of equity to Islamic finance cases without referring to Syariah Advisory Council advisory & opinion.


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Judiciary – Developments in Conflict

• Corrected by CA decision in Bank Islam Malaysia Bhd v Ghazali Shamsudin

• Have to apply correct interpretations of Islamic laws & doctrines of Muammalat & its implementation via civil laws

• Net effect – Central Bank Act – S.51-60 – referral of matters to Syariah

Council of BNM & decision to be followed (although some jurists argue unconstitutional & therefore void)

– Create special Islamic Finance Division in High Court, training of judges


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Judiciary – MembersChief Justice of the Federal Court

& Federal Court JudgesPresident of the Court of Appeal &

Court of Appeal JudgesChief Judge of the

High Court of Malaya &

High Court judges

Sessions Court Judges

Magistrates

Chief Judge of the High Court of Sabah &

Sarawak & High Court Judges

Sessions Courts Judges

Magistrates

Superior Courts

Subordinate Courts


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Judiciary – Appointment of Judges

• Art 122B FC provides for the Appointment of Judges

• Art 122AB(1) - Judicial Commissioners may be appointed to carry out role of HCJ


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Federal Court - Composition

• Established by Art 121(2) – highest court in Malaysia• Members – Chief Justice of Federal Court, President of

Court of Appeal, 2 Chief Judges of the High Courts and 4 FCt judges & such other judges appointed by virtue of Art.121(1A) of FC

• Currently 7 FCt judges• Appointment of judges by way of Art 122B• Appointment by YDPA on advice of PM after

consultation with Conference of Rulers & Chief Justice (CJ) (save for his own apptm)


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• YDPA, on advice of CJ, may appoint other judges of high office as additional FCt judge

• CJ may nominate a Court of Appeal judge other than the President of CA to sit on FCt

• Art 123 – appropriate legal experience, citizen, past 10 years been an advocate of HC or member of judicial & legal svc

• Appointment until age 65, extension up to 6 mths to complete part-heard cases


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• S. 74(1) of Courts of Judicature Act (CJA) - Proceedings heard by 3 or more judges of uneven number as determined by CJ (presiding judge)

• S. 74(2) CJA - in absence of CJ, most senior judge presides

• S.80(1) CJA - Incidental directions & interim orders may be made by a singe judge in FC but may be discharged or varied by full court (s.80(3))

• As final court of appeal, full bench of 5• Very important cases (rare) full bench of 7


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Federal Court – Jurisdiction • Art 121(2) FC – vested with original, referral, advisory and

appellate jurisdiction• Original - Art 128(1)(a) and (b) FC & s.81 CJA – to decide

over validity of Federal & State laws, disputes between States & Federation and States - declaratory judgements only (Art 128(1)(b))

• Referral - Art 128(2) FC - Determine constitutional issues before any other courts & referred to it by way of special case, proceedings stayed pending decision, thereafter remit the case to trial court to be disposed of in accordance with its decision.


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Federal Court – Jurisdiction • Advisory - Art 130 FC - YDPA may refer to FCt constitutional

issues which has or appears likely to have arisen, on its effect, pronounce in open court

• Rare as AG as adviser to Govt have full personnel & financial resources to get advice from best legal services avail– Govt of Malaysia v Govt of the State of Kelantan [1968] 1 MLJ

129 – A company granted mining & forest concession in return for advance payment of royalty under financial package. FCt asked to advise on matter & found that the transaction does not constitute “borrowing” within the meaning of FC. Later, Art 160 extended meaning of “borrowing” to negate the law established by this case.


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Federal Court – Jurisdiction • S.96 CJA 1964 – vested Appellate Jurisdiction• Civil appeals from the Court of Appeal with leave from the FCt on

any final judgm/order of CA or matter decided by HC in exercise of its original jurisdiction.

• Grounds of civil appeal to FCt: on point of law or improper rejection or admission of evidence by lower court

• S.97 CJA 1964 – if appeal is on factual grounds, FCt may refuse leave to appeal.

• S. 92 CJA - May order new trial by HC• S.100 CJA 1964 – new trial cannot be granted on ground of

improper rejection or admission of evidence unless FCt is of opinion it has caused a failure of justice


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Federal Court – Jurisdiction • Criminal appeals from decision of CA in its appellate

jurisdiction on matter decided in first instance by HC – question of fact or law or mixed

• PP may appeal against acquittal, notice given in writing with consent of PP

• S.90 CJA 1964 – FCt may sumarily dismiss appeal, confirm, reverse or vary decision of CA, order retrial or remit matter with its opinion to HC, make such order as deems just. May dismiss appeal even find in favour of appellant on pt of appeal if feel no substantial miscarriage of justice occurred– Ramli bin Kechik v PP [1986] 1 CLJ 308, 317


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Court of Appeal - Composition

• Art 121(1B) established CA - Created in 1994 by Constitution of (Amendment) Act 1994 & Courts of Judicature (Amendment) Act 1994

• President (presiding judge) & 10 CA judges (unless YDPA decides otherwise)

• After consultation with CJ of relevant HC, High Court judge may be nominated to sit on CA if President of CA considers interest of justice requires so

• Proceedings heard by 3 judges


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Court of Appeal - Composition

• S. 38 CJA – larger number may sit if President deems appropriate

• 2.38(2) – in absence of President, most senior judge presides

• S.44(1) – incidental directions and interim orders disposed of by single judge although may be discharged of varied by full court (s.44(3) CJA)


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Court of Appeal - Jurisdiction• Appellate jurisdiction:• Civil Appeal:-• S67 CJA appeals on judgment or oder of HC in ex of its ori

or appellate jurisdiction & subj to any other written laws.• S68 CJA no appeal to CA if

– Amount or value of claim (exclusive of interest) is less than RM250,000 except with leave of CA

– Judgement or order made by consent of parties– Judgement or oder relates to costs only (discretion of ct), save with

leave of CA– Where by written law for the time being in force, HC decision is

expressly declared final.


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Court of Appeal - Jurisdiction

• Decision of judge in chambers in summary by way of interpleader and facts not in dispute, appeal only with leave of CA. But appeal allowed if in open court trial. (Interpleader – where 2 parties are asked to initiate proceedings so a third party can decide on how to deal with an issue eg ownership of property)


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Court of Appeal – Jurisdiction• CA rehears case & has all powers & duties of HC• CA may:-

– Under S.71 Order a new trial (regardless whether case was ex of original or appellate jurisdiction of HC) but no new trial on grounds improper admission or rejection of evidence unless considers substantial wrong or miscarriage of justice occurs

– Reverse or vary decision of HC • Grounds of such orders:- error, defect or irregularity which does

not affect the merits or jurisdiction of the HC• Once disposed of, CA cannot reopen, rehear or reexamine is

decision– Lye Thai Sang & Anr v Faber Merlin (M) Sdn Bhd & Ors [1986] 1 MLJ 166


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• Criminal Appeals:- • S.50(1) CJA 1964 May hear on any HC cases in ex of its

original or appellate or revisionary jurisdiction decided by Sessions Ct

• S.50(2) if appeal against HC decision is in ex of its revisionary jurisdiction in matter heard by Magistrate’s Court, need leave from CA – S.51(2A) confined only to questions of law in course of appeal/revision, whose determination affects it

• S.61 - May take additional evidence


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• Appeal from PP, only consent of PP required.• CA may:- summarily dismiss, confirm, reverse, vary

decision of trial ct, order retrial or remit with its opinion, makse such order as may seem just & may by that order exercise any power which trial ct might have exercised

• May quash sentence & pass such other sentence warranted in law if it considers so appropriate

• Art 126 & S.13 CJA 1964 punish for contempt of court


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High Court - Composition

• Art 121(1) of the FC – 2 High Courts (HC) with coordinate jurisdiction and status

• HC of Malaya, principal registry in Kuala Lumpur• HC of Sabah & Sarawak• Distinct territorial jurisdiction over different

geographical areas• Art 122AA(1) – each HC consists of Chief Judge and min

4 judges • Currently 56 Judges & Judicial Commissioners (JC) – 45

Penin, 11 S&S


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High Court - Composition• S.18 CJA – proceedings heard by single judge unless a

specific statutory provision provides otherwise• S.19 CJA – sits at such time and place as CJ determines• O.92. r3A of Rules of HC – confers HC right to transfer

proceedings between HC Malaya and S&S• Result of Gopal Sri Ram JCA observation in Fung Beng Tiat v Marid

Construction Co [1996] 2 MLJ 413

• Re Teoh Then Pheng ex p D & C Leasing Sdn Bhd [1993] 2 MLJ 1 – HC has power to transfer case to any other court or to and from any Sub Ct (where HC may give direction on appropriate conduct of case)


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High Court - Jurisdiction

• S.23(1) CJA (Amendment) Act 1994– May try all civil proceedings where• Cause of action arose within local jurisdiction of courts;

or• Defendant(s) resides or has his place of business within

the local jurisdiction; or• Facts of which proceedings based exist or alleged to

have occurred within local jurisdiction; or• Any land which ownership is disputed is situated within

the local jurisdiction


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High Court - Jurisdiction• S.22 CJA – Criminal Jurisdiction on all offences committed:-

– Within local jurisdiction– On high seas on Malaysian registered craft– By citizen or permanent resident on any craft– Piracy as determined by laws of nations, by any person on high seas– Under Penal Code on Extra-territorial offences

• No criminal case may be brought to HC unless accused properly committed for trial after prelim hearing in Magistrate’s Court

• S.24 CJA – matrimonial, admiralty, bankruptcy/winding-up, probate, administratin of estate, guardianship of infants


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High Court - Jurisdiction• S.35(1) CJA – supervisory & revisionary/appellate Jurisdiction over

subordinate courts:-– May call for record of hearing in sub ct, hearing stayed pending further order of HC– Remove case ot HC or direct sub ct accordingly– May hear appeals from Sub Cts

• Appellate Jurisdiction:-– Civil Appeal - S.28 CJA – appeal must be more than RM10,000 save for alimony

cases where no limitation of value imposed– Criminal Appeal from Sub Cts

• Appeal by way of rehearing• Reference on consitutional matters from Sub Ct• Can refer questions of Law in such appeals to CA if in public interest or of

paramount importance


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High Court - Jurisdiction• High Court Divisions:-

– Commercial (now with Islamic Finance Div), Appellate & Special Powers, Civil, Criminal• Other Special Courts

– Special Commissioners of Income Tax– Industrial Courts – IRA 1967 – hear matters on employers, employees & trade unions,

President of IC appointed by YDPA, panel of persons representing both sides appointed by Min of Law. Hearing consist of President & 2 panel members, 1 from each side. May be represented by TU or Employee’s Union. Permission of President required if want lawyer. IC may give award & may take non-legal matters into consideration.

– Cheek Hong Leong v Kym Industries (M) SDn Bhd [1997] 7 CLJ 317, HC• S.33A(1) allows IR to refer to HC on Q of Law subj to 4 conditions, not create

automatic appellate jurisdiction to HC– Mas Golden Boutique Sdn Bhd v Md Zain Abu [1999] 2 ILR 583

• Questions were taken as being grounds of appeal not question of law for consideration of HC


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Subordinate Courts• S. 3(2) of Subordinated Courts Act 1948 – Sessions,

Magistrates. • Amended & enforced 1 May 2013• Now Penghulu Courts (RM50 claims or penalty RM25)

abolished• Jurisdiction increased• Registrar or Senior Assistant Registrar in chambers not sub

court. – Public Bank Bhd v Chan Tak Kow [1988] 3 MLJ 330 –Their

jurisdiction is by virtue of O.32 r9 of RHC 1980 – appeal to judge in chambers by O.56 R.1 RHC


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Subordinate Court – Session Courts

• Session Courts - Civil & Criminal Jurisdiction– Civil Jurisdiction

• Motor vehicle accidents, landlord & tenant & distress unltd• Value not excedding RM1m• Specific performance, rescission of contracts, cancellation or

rectification of instruments• Parties entered into agrm to cede to jurisdiction of SC provided

issues triable by SC but for limitation on value• Can grant injunction & make declaration• Can proceed with whole matter even if defence/counterclaim

exceed jurisdiction but cannot award more than limit. May transfer to HC


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Subordinate Court – Session Courts• Session Courts - Civil & Criminal Jurisdiction

– Civil Jurisdiction (continued)• May relinquish claims in order to have SC due to lower costs & fees

but cannot split claims • Excluded jurisdiciton:- immovable property save for landlord, tenant

& distress (unless real issue of ownership in q but ok if all parties consent), trusts, acc,declaratory decrees save for interpleader & seizure of property & recovery of debt within limit on value, probate, status of individual, guardianship/ custody of infants, dissolution of marriage (unless agrd to in writing, orders within prescribed limit,)

– Criminal Jurisdiction• Try all offences other than punishable by death. Stcg as prescribed by

law other than death


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Subordinate – Magistrate Courts

• Magistrate Courts– Minor civil & criminal cases– Civil Jurisdiction

• First Class Magistrate increased from RM25,000 to RM100,000• Second Class Magistrate increased from RM5,000 to RM10,000

– Criminal Jurisdiction• First Class Mag – try offncs w not more than 10 years’ stc or

fine only, S.392 & 457 of Penal Code – Stcg not exceed 5 yrs, RM10k, 12 strokes, combi

• Second Class Mag – try offncs w not more than 12 mths stc or fine only – Stcg not exceed 6 mths, RM1k, combi


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Subordinate – Juvenile Courts• Purview of Juvenile Courts Act 1947

– Criminal offenders under 18 yrs old• S. 4(2) JCA – First Class Mag + 2 lay advisors (1 woman) –

advise considerations affecting punishment/treatment of Juvenile

• S.4(4) jurisdiction to try all cases save for punishable by death• Closed court• Sent to approved institutions for corrective education, or

good behaviour bond, appear for stcg , probation• Juvenile may appeal to HC


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Subordinate Courts – Small Claims

• Small Claims Court– Maintained under r.93 of Rules of Court 2012– Recovery of debt or liquidated demands in money– Claims not more than RM5,000– Submit Form 198 in prescribed form to Court

Registry at Magistrate’s Court– Low cost, no legal rep– Heard by Second Class Magistrate


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Subordinate Courts - Native• Jurisdiction over “native customs”• Statutory courts stablished under relevant state Ordinances in

Sabah & Sarawak • Can try civil & criminal matters including breach of native law or

custom (include religion & matrimonial), land with no issue doc of title from LO & everyone subj to same native customary law, not exceed RM50 & everyone subj to same native customary law (exclude land)

• Sarawak – citizen & is of race indigenous to Sarawak• Sabah – citizen, child or grandchild of person indigenous to Sabah

and bornin Sabah or to father domiciled in Sabah at time of birth.


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Subordinate Courts - Native• Sarawak:– District Native Court – Magistrate, Native Officer & 2

assessors. Imprinsonment not xceed 2 yrs & fine RM200– Native Officer’s / Chief’s Court – Native Officer/Chief & 2

assessors, can impose 6 mths imprisonment + fine RM100

– Headman’s Court – Headman & 2 assessors. Can impose fine not exceed RM50

– Appeals go up the chain of heirarchy as above, thereafter to Resident Native Court then to Native Court of Appeals


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Subordinate Courts - Native• Sabah:

– Native Court – District Officer as supervisory-appellate capacity– Native Courts subj to scrutiny by D.O. – may quash, vary, direct

rehearing if proceedings irregular, improper or unconscionable. Imprisonment must be endorsed by D.O., can hear appeals from Native Court

– Appeal from D.O. to Native Court of Appeal presided over by HC Judge, Resident where ori proceedings occurred & 1 native chief. Judge has powers of HCJ

– Ongkong Anak Salleh v David Panggau Saindin & Anor [1983] 1 MLJ 419• District Native Court not subordinate to HC. HC has no supervisory

jurisdiction over it


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Alternative Dispute Resolution

• Financial Mediation Bureau – banks v customers• Consumer Claims Tribunal

– consumers v traders vide Consumer Protection Act 1999, – consist of Chairman & Deputy from Judicial services, 5 or

more lawyers or persons in 4th Sched of Sub Cts Act (First Class Mags/Residents, DO, Class 1 Admin Off, SARs)

– S. 116 - Decisions final & binding as per Mag Ct & enforceable

– S.117 - Failure to comply within 14 days, criminal offence liable to 2 yrs jail, fine RM5,000 or both, continuing offce at RM1,000 pd


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• Mediation–Facilitative process to resolve dispute

quickly. Mediator’s role is determinative.• Conciliation–Advisory or directive role–Assist parties to id dispute, develop

optons, determine alternatives, reach agreement


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• Arbitration–To settle commercial dispute–Formal dispute resolution process –Hearing before independent third party–Arbitrator makes an award which is final &

binding unless agreed to contrary at beginning–Determinative process


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• Arbitration– Under purview of Arbitration Act 2005, S. 9(2) must be in writing (agrm,

docs, communication or exchange of stm of claim & defence where agrm is alleged by one & not denied by other)

– S. 10 AA – if there is arbitration agreement, parties cannot avoid it by filing case in court – affirming caselaws (see textbook) • Standard Chartered Bank Malaysia v City Properties Sdn Bhd[2008] 1

CLJ 496 – HC allowed stay in proceedings pending arbitration pursuant to S.10 of AA

– O.69, Rules of Court 2012 – provides for procedure for commencement of claims, applications to set aside or enforce award, refer q of law, prelim q of law, registration of foreign award, stay of proceedings, extension of time, svc out of jurisdiction etc


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Law, Justice & Morality – Application of Laws

• Secular Rule of Law– Law reigns supreme although flawed– Distinct from Religion (contrary to religious norms eg Usury),

Justice (fairness & equity eg poor thief) & Ethics (moral standard & beliefs eg what majority thinks)

• Subject to Societal norms– What society deems right at that time– What about minority?

• Ideal approach?


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Law & Its Basic Functions

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SHARIFAH MAZWIN016-2386510 (Whatsap, Viber)

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