Introduction to Malaysian Legal SystemCommercial Law

Concept of law

0Law is understood as a rule of conduct, in most instances backed by sanctions.

0Law is enacted and recognised by a society as binding0Law is enforced by the State (note that in Malaysia

there are federal authority and state authority – Federalism)

0 Its aim is to attain justice (though the notion of justice is abstract and subjective)

Classification of law0 3 broad divisions:0 Public law0 Private law0 International law

0 Public law is the law that governs relationship between individuals and state such as constitutional law (rights of individuals, power of the government) and criminal law (codified offences and its repercussions, not limited to the Penal Code)

0 Private law is concerned with matters that affect rights and duties of individuals amongst themselves. It intends to give the victims compensation and enforcement of obligations)

0 International law is the body of law that governs the conduct of states such as law regarding the use of the high seas, law of war and transboundary environmental issues.

Sources of law

0The legal rules that forms the law in Malaysia02 classification:

0 Written law0 Unwritten law

Written law Unwritten law

The most important source of law that includes:• The federal and state constitutions.

• the FC is the supreme law of the land (Art.4) Any law that was passed which is inconsistent with the FC shall be void.

• The FC also lists down the fundamental rights of individuals.

• FC can be amended with 2/3 majority vote in Parliament – in contrast with the simple majority rule for normal laws.

• Legislations enacted by Parliament• Acts, Ordinances, Enactment, by-laws• Legislation refers to law enacted by

Parliament (federal level – List 1 of the 9th schedule) or State legislative assemblies (state level – List 2 of 9th schedule)

• Laws are enacted in accordance with the FC and SCs

• Subsidiary legislations• Made by persons or bodies under

powers conferred on them by Acts.

Laws that are not enacted and could not be found in a codified form.They can be found in decisions of the courts (cases), local customs etc.

• Principles of English law applicable to local circumstances – common law & equity• Only laws as administered in England on

7 April 1956 (cut off date) as provided by S.3(1) Civil Law Act 1956.

• English law after cut off date – Malaysian courts are not bound to follow (Mohktar v Aramugam [1959] MLJ 232 and also in Ong Guan Hua v Chong [1963] MLJ 6)

• Rely on English law carefully so that local law can develop

• Judicial decisions of superior courts• Rule of stare decisis (doctrine of biding

judicial precedent) as affirmed in Mah Kah Yew v PP (1971) 1 MLJ 1

• Customs - Malay adat

Islamic law

0 Another important source of law in Malaysia0 Once the law of the land 0 The Shafii school0 Islamic law is not foreign law but local law and the law of the land. The

court must take judicial notice of it and must propound the law (Ramah v Laton [1927] 6 FMSLR 1278)

0 Islamic laws in Malaysia is confined to the personal laws and within the powers of the State (9th Schedule FC)

0 Enforced by the Syariah courts.0 Syariah punishment – 3 years imprisonment, RM5000 fine or 6 strokes

of whipping.

Administration of Justice0 Hierarchy of courts:

0 Federal court0 Court of appeal0 High court (Malaya and Sabah Sarawak)0 Sessions court0 Magistrate court

0 There are also:0 Penghulu court (Semenanjung)0 Native court (Sabah Sarawak)

0 Others:0 Industrial courts0 Court martial0 tribunals