malaysian legal system notes
TRANSCRIPT
AMYLIA BINTI ISMAIL
Malaysian Legal System
INTRODUCTION
1.0 what is Law?
The word “law” is difficult to define, particularly as it is used in many
different ways. It contains, however, the concepts of orderliness, universality
and objectivity. The term ‘law’ is used in many sense, we speak of the laws
of physics, laws of games, laws of state or law of traffic. When we speak
about the law of the State we use the term “LAW” in a very special and strict
sense, and this law may be defined as rule of human conduct, imposed upon
and enforced among the members of a State.
When we speak of the law we usually imply the whole of the law, however it
may have been formed, much of the Malaysian law has been created out of
the English customs, but a great part of the law has been created by statute
i.e. Act of Parliament.
Human being resorts to various kinds of rules to guide their life. Different
people perceive law differently. For the lawyers, they see it as their exclusive
preserve as laypersons depend largely on them to explain the intricacies of
the law. For the average person he may see it as a nuisance for having to
comply with various procedures, which he or she does not understand.
Thus moral rules and ethics remind us that are immoral or wrong to tell lies
or engage in drugs or to get involved in a brothel business. If we breach
these moral and ethics we may lose friends or their respect.
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Law performs various functions in society and its pervasiveness may impinge
our lives. Amongst others, we are compelled by law to have a birth
certificate and an identity card etc
1.2 What is justice?
In Malaysia we practice adversarial system, which means that it is the parties
through their advocates who control the course of inquiry. The parties decide
what evidence shall be adduced subject to the rules of admissibility and it is
on the basis of the admissible evidence adduced by the parties that the court
must come to a decision. The judge acts as an impartial referee, there to
ensure that the parties comply with the rules of procedure and evidence in
presenting a case.
Justice refers to fairness or rightfulness. However, what is justice in Malaysia
may not necessarily mean justice in other parts of the world. Justice must not
only must be done but seen to be done. That’s why we have open court
system.
1.3 Rule of Law
The rule of law is the essential doctrine of the British Constitution. It is not
written code of rules but the general principle implicit in the common law
which the courts will apply, unless some statute can be quoted modifying the
application.
The rule of law cover three essential aspects.:-
a. no person can be punished except for a definite breach of law, established
in the ordinary law courts of the land
b. No person is above the law and everyone must bear the legal
consequences of his own act. Equality before the law.
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c. There is an absence in the UK of any special body of courts to try cases
where the citizens is in conflict with the government unlike in France where
litigation between citizens and state officials is dealt with by special
administrative courts.
It is often stated that it is from the principle of the rule of law, all forms of
liberty, persons liberty. liberty of speech and freedom of press are derived.
1.4 Classification of Law
Law can be classified into various areas. Generally speaking it ca be
categorized into three main areas.
1. Public Law and Private Law
2. Substantive Law and Procedural Law
3. Private International and Public International Law
1.5 Public Law
Public law regulates the relationship between the citizen (an individual or
group of people) and the State. Example. In a murder case where Daniel
murdered Budin. Therefore here Daniel has committed a crime which is
against the State (King’s law) – R v Daniel. (R= REX). Public law is divided
into constitutional law, administrative law and criminal law.
Constitutional Law – defines the structure of the principal organs of
government and their relationship to each other, and determine their
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principal functions and the rights of individual under that government.
Example in Malaysia:
Article 6(1) of the Federal Constitution:- says no person shall be held for
slavery.
Article 8(1) of the Federal Constitution: - says all person are equal before the
law and entitled equal protection of the law.
Administrative Law – is defined as that body of legal principle which concerns
the rights and duties arising from the impact upon the individual of the
actual functioning of the executive instrument of the government. In
synopsis we can terms it as the law that regulates the duties and exercise of
powers by administrative authorities.
Criminal Law – deals with acts or omissions which are offences against the
State and for which the offender is liable to be tried and if found guilty, will
be punished according to the law. Crime is defined as of disobedience of the
law forbidden under pain of punishment. The punishment for crime ranges
from death or imprisonment to a money penalty or absolute discharge
1.6 Private Law
Private law deals with the relation between one citizen and another citizen. It
is also known as Civil law. It includes contract, Family Law, Tort, Land Law
and commercial law in general. Legal action may be commenced or initiated
by individuals seeking for damages or compensation.
Example where Intan and Hezrynda entered an agreement and Hezrynda
breached the contract. Here Intan has a cause of action against Hezrynda. In
this situation Intan will be the Plaintiff because she is the one who is
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initiating the action and Hezrynda will be the defendant. Intan v Hezrynda
1.7 Substantive Law
Substantive law is the statutory or written law that governs rights and
obligations of those who are subject to it. Substantive law defines the legal
relationship of people with other people or between them and the state.
Substantive law stands in contrast to procedural law, which comprises the
rules by which a court hears and determines what happens
incivil or criminal proceedingsIt the body of rules of law in the above
branches. Substantive law defines crimes and punishments (in the criminal
law) as well as civil rights and responsibilities in civil law. It is codified in
legislated statutes or can be enacted through the initiative process Thus ,
murder is common rule offence. Bigamy is a statutory offence and Passing
off is a tort at common law.
1.8 Procedural Law
Procedural law deals with the method and means by which substantive law is
made and administered. The time allowed for one party to sue another and
the rules of law governing the process of the lawsuit are examples of
procedural laws..t lays down the rules governing the manner in which a right
is enforced under civil law, or a crime prosecuted under the criminal law. A
legal action is started by a writ in civil cases and by summons in criminal
cases.
1.9 International Law
Includes Private and Public International Law.
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Public international law deals with relationship between states. E.g. Border,
territorial waters etc. Certain writers hold that there is no world authority
with power to enforce the rules or the laws.
Private International law is concerned with the application of various national
laws of the facts of a particular case involving two or more countries eg.
System of law applicable to a marriage between 2 different nationals in a
third country. Thus Nurul, a Malaysian national, makes a contract in Madrid
with Jeniffer. If Nurul wants to take an action against Jeniffer, the court will
have to determine by the rules of the private international law which law is
to be applied. Malaysian or Spanish law?
1.10 SOURCES OF LAW
The main sources of law in Malaysia can be categories as follows
a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Principles of English Law
g. Judicial Precedent/
h. Islamic Law
1.10.1 FEDERAL CONSTITUTION
Malaysia has a written constitution unlike the United Kingdom. The Federal
Constitution is the supreme law of the land. Generally, any law which is
inconsistent with the Federal Constitution is invalid. The Malaysian
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Parliament functions under a written constitution and is governed by it. Its
law making power is limited by the provisions in the constitution. However
our Parliament as a legislative body has the capacity to amend , repeal and
make new constitution by way of two third majority vote of the both houses
of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution
also establishes a constitutional Monarchy and a Federal System of
Government.
In England Parliament is Supreme and has full power to make law on any
matter.
According to Dicey:
‘ The Principle of Parliamentary sovereignty means neither more nor less
than this, namely that Parliament has, under the English constitution, the
right to make or unmake any law whatever; and further that no person or
body is recognized by the law of England as having a right to override or set
aside the legislation of Parliament’
How far is this true after the signing of treaty of Rome in 1972? How
supreme is Parliament?
1.10.2 THE STATE CONSTITUTION
The 13 States of Malaysia have individual constitutions, which provide for a
single chamber Legislative Assembly in each state. A Menteri Besar or a
Chief Minister heads the government. (In the Malay States a cabinet known
as the Executive Council assists the Menteri Besar) In Sabah & Sarawak,
members of the Executive Council are known as State Ministers.
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1.10.3 LEGISLATION
It refers to laws made by a person or body, which has power to make law. In
Malaysia, Parliament and Legislative Assemblies have powers to enact laws
in their respective areas. Laws made by Parliament may extend to the whole
country. However, laws enacted by a State Assembly only apply to that
particular state only.
Act - Federal Law made by Parliament
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an emergency when
Parliament is not sitting concurrently.
1.10.4 ENGLISH LAW
The supremacy of English Law remains in Malaysia even after independence.
The English Law is adopted so far as they were suitable to local conditions.
Many of the local laws especially those affecting trade, commerce and
banking were patterned on English Models (or in some instance other
colonial laws) e.g. Section 3 and 5 of the Civil Law Act 1956 provide that
English law relating to contract is applicable in Malaysia in relation to areas
not covered by our legislation or our case law. Our courts have also tended
to look towards the English Law to aid them in the interpretation of the
Contract act.
1.10.5 SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION
Also known as delegated legislation. A statute will confer power on an
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authority for it to enact rules and regulation. An example of delegated
legislation is the parking by laws enacted by various councils under powers
conferred on them by the State Local Government Enactments.
1.10.6 THE COMMON LAW
Refers to law laid down by judges sitting in the Superior Courts as distinct
from statute law enacted by the legislative.- Judge made law. This system
was inherited from England
1.10.7 SYARIAH LAW
Is the body of Islamic law. The term means "way" or "path"; it is the legal
framework within which the public and some private aspects of life are
regulated for those living in a legal system based on Muslim principles
of jurisprudence Applicable to Muslims only and administered in the Syariah
Courts. The courts possess civil jurisdiction over offences by Muslim against
the religion.
1.10.8 THE DOCTRINE OF STARE DECISIS ET NON QUIETA MOVERE /
BINDING PRECEDENT
The doctrine of Stare Decisis is a Latin legal term, used in common law to
express the notion that prior court decisions must be recognized
as precedents, according to case law. More fully, the legal term is "stare
decisis et non quieta movere" meaning "stand by decisions and do not move
that which is quiet" (the phrase "quieta non movere" is itself a famous
maxim akin to "let sleeping dogs lie").Why do lawyers cite previous cases
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from thick volumes in their arguments before the court? The answer is
because the common law The doctrine of binding precedent or stare decisis
is central to the English legal system, and to the legal systems that derived
from it such as those of Australia, Canadaand New Zealand. A precedent is a
statement made of the law by a Judge in deciding a case. The doctrine,
states that within the hierarchy of the courts a decision by a higher court will
be binding on those lower than it. This means that when judges try a case
they will check to see if a similar case has come before a court previously,
and if there was a precedent set by an equal or higher court, then the judge
should follow that precedent. If there is a precedent set in a lower court, the
judge does not have to follow it, but may consider it. The Federal Court
however does not have to follow its own precedents.
Only the statements of law are binding, this is known as the reason for the
decision orratio decidendi, all other reasons are by the way or obiter dictum
see Rondel v. Worsley (1969) 1 AC 191. A precedent does not bind a court if
it was found there was a lack of care in the original “Per Incuriam”, for
example if a statutory provision or precedent had not been brought to the
court's decision. If a court finds a material difference between cases then it
can choose not to be bound by the precedent. Persuasive precedents are
those that have been set by courts lower in the hierarchy, they may be
persuasive but are not binding ,. Most importantly precedents can be
overruled, by a subsequent decision by a higher court or Act of Parliament,
Judicial ruling is retrospective, whereas Act’s of Parliament are always
Prospective unless stated.
The last situation brings about the greatest problem of the precedent
system, in that if a higher court overrules a precedent that is quite old, then
it is very likely that many cases that have been decided upon that precedent
will return to court. Therefore, it becomes increasingly unlikely that a
precedent is overruled the older it is is found in decision of the superior
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court. Judges are obliged to decide the case before him by reference to a
previous decision when the conditions for the operation of the doctrine of
precedent are satisfied. These are the previous decision decided in the
previous case, so far as its ratio decidendi is concerned, relevant to the
determination of an issue of law in the case in question, and that the prior
court’s decisions are authoritative for his court, it is a court which is superior
to his hierarchy.
What about Malaysia? Do we adhere to these principles of judicial
precedent? Even when we have statutes, we still look to the judges
interpretation of the law. The statute must be read in the light of decided
cases.
Judges are required to follow a system, which provides for consistency and
certainty in decision. A judge’s decision in an earlier and similar case
constitutes a precedent and may be binding depending on the hierarchy of
the courts concerned. E.g. the decision of the Federal Court is binding on the
other courts, but the decision of the High Court is binding on the lower courts
and not on the Court of Appeal and Federal Court.
1.11 THE LEGAL INSTITUTION
YDPA
Legislative Executive Judiciary
Constitutional law is concerned with government in a state. If a question is
asked what government is, we are likely to think of various official powers
which are exercised over us or in short we can say they are the power
organizing structure.
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In Malaysia it would be simple enough to classify the activities referred to the
above as legislative, executive or judicial. As the terms is generally
employed, the legislative activity involves the enactment of general rules for
the individuals and groups in society. The executive function is harder to
define, but includes actions taken for the maintenance of order, in the
implementation of the law, for the defense of the state, in the conduct of
external affairs, and in the administration of internal policies. Finally the
judicial function involves the determination of issues of fact and the
interpretation of law and dealing with crimes or civil causes by the
application of the law to them.
Sometimes the three functions may be viewed as a combination or
sequence. For example it is the legislative power to increase income tax.
Executive action will is involve in the collection of the arrangements for the
tax collection and the judicial proceedings may be involved when persons
are found evading tax payment. The three functions can be described as
making law, applying law and enforcing law. But some of the activities which
we would classify as executive, including the general conduct of foreign
policy, do not involve the execution of law at all.
The terms which we have been using, which categorizes the functions of
government as legislative, executive and judicial, has become commonplace
in the description of constitutional arrangements. The terms have been
derived from a doctrine which was developed in the seventeenth centuries in
England and this doctrine is commonly known as doctrine of separation of
powers. It is also natural to use the terms because in many states there
seem to be institutions whose primary functions correspond to one of these
three kinds of activity, whether it is under the influence of the doctrine or
not.
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Doctrine of Separation of Power
The doctrine of the separation of powers is most often associated with
French writer Baron de Montesquieu but it would be a mistake to think that
he invented it. The model was first developed by the ancient Greeks in the
constitutions that governed their city-states. However, it first came into
widespread use by the Roman Republic. It was outlined in theConstitution of
the Roman Republic.The doctrine of the separation of power is not a legal
principle, but a political theory.
The doctrine includes a proposition about the functions of government, and
discussion of the forms and functions of government may be traced back to
ancient Greece. In Aristotle’s politics, he distinguishes three elements in
every constitution, which he classified as the deliberative, the magisterial,
and the judicial
Judiciary hears and determines civil and criminal matters, and pronounces on
the legality of legislative and executives acts. It may also interpret the
Federal Constitution and State Constitution.
The High Court of Malaya and Sabah & Sarawak, the Court of Appeal and the
Federal Court are superior courts. The general rule is that the Jurisdiction of
the courts increases as one moves upwards .
There are also several specialised tribunals exercising judicial and quasi
judicial functions eg. Industrial Court and Court Martial. These courts provide
an inexpensive and specialised means of settling disputes between the
parties.
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1.12 THE LAGISLATIVE PROCESS IN THE MALAYSIAN PARLIAMENT
The Bill introduced to parliament may be classified as:
a) Private Bill’s
b) Private Member Bills
c) Hybrid Bills
d) Government Bills
The Bill is normally presented by the Minister to the Parliament A Bill
introduced in either House in accordance with Parliamentary procedure as
prescribed by the Standing Orders usually goes through 4 stages:
1.The First Reading
2. The Second Reading
3. The Committee Stage
4. The Third Reading
To introduce a bill, it is required to give notice to the Clerk of the relevant
House before which he intents to introduce it. Bills may be classified as
Private Bills, private member’s Bills, hybrid bills or government Bills.
At the first reading, the Minister merely mention the title of the Bill and then
proceeds to give oral notice as to when he wishes to move the Second
Reading. There is a debate or amendment at this stage of the proceeding
which are but a mere formality.
This motion, moved by the Minister, requires to be seconded. By the time
this motion is move, the Bill will have been printed and circulated to all
members of the House. Otherwise, the Bill cannot be presented. It is as this
stage that debate on the Bill is carried out.
At the end of the Second Reading, the Bill is committed Committee of the
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whole House. In effect, the House resolve itself into a Committee on the Bill.
This is called a Committee Stage and it is intended to allow members the
opportunity to discuss detail of the Bill and to propose amendment in a less
formal proceeding. When discussion is completed in Committee, the Minister
move a motion to report the bill under consideration to the House. If the
motion is accepted, the House will resume sitting and this brings the
Committee Stage to an end.
When the house resume sitting, the minister reports that the Bill has been
considered and accepted by the Committee with or without amendment.
When a Bill has been passed in the manner describe above in either House,
it is then transmitted or send to the other House for Consideration. When the
has been considered by the other House in a similar fashion, it is return to
the House from which it originated. The motion is the final step and article 68
of the Federal Constitution will become operative.
According to article 68, the Bill may be presented to the Yang di-Pertuan
Agong for his assent after the lapse of one month if it is a Money Bill and
twelve months if it is not a Money Bill. However, this primacy of the House of
Representatives over the Senate does not exist in the event of a Bill
amending the Constitution. Constitutional amendment requires the
concurrence of both chambers. The function of the Senate is general
legislation is of a revising nature with no real authority to reject measures
passed by the House of Representative.
Although a Minister normally introduces a Bill, there is nothing to prevent
any member either of the government or the opposition from introducing a
Bill, but such a move is unlikely to succeed unless it commands the support
of the government. Bill may originate from either House with the exception
of a Bill or and amendment concerning any of the matters enumerated in
article 67, such a taxation and expenditure, which must be moved by a
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minister in the House of Representative.
The legislative procedure in the State Assemblies is almost similar to that in
the Federal Parliament with some local variations. Bill are passed by the one-
chamber by Legislative Assembly and assented to by the Ruler or Yang di-
Pertua Negeri before becoming law, and no law can come into force until it is
published. Bills requiring expenditure from the Consolidated Funds have to
be introduced by a member of the Executive Council. State Constitution, with
certain exceptions may also be amended on the same format as an
amendment of the Federal Constitution, that is, supported on the second and
third reading by at least two-third of the total number of members. The
constitutional provisions affecting succession to the throne in the Malay
State may not be the subjects of amendment by the State Legislature.
1.12.1 Voting
A Bill is adopted by a simple majority vote of those members present and
voting. There are several exception to this rules, the most significant being
constitutional amendment in accordance with article 159 of Federal
Constitution. Bill shall not been passed in either House of Parliament unless it
has been supported on the second and third readings by the votes of not less
than two-third of the total number of members of that House.
1.12.2 Royal Assent
The Yang di-Pertuan Agong is an integral part of Parliament. His assent is
normally before a Bill becomes law. Royal Assent is not effect within a time
specified, the Bill becomes law as if it had been assented. Prior to the
amendment, there was no evidence to suggest that the Royal veto over a
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proposed federal law has ever been official existed.
1.12.3 SUMMARY ABOUT HOW A BILL BECOME A LAW
(I) First Reading
When a bill is first introduced in one of the two houses, only its title is
actually read. After the Bill is passed at this stage, its text is printed and
distributed.
(2) Second Reading
Members debate the Bill. If accepted, it is passed on for consideration by a
committee of the house.
(3) A Committee of The House
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
Bills goes on to a third reading in the house.
(4) Third Reading
Debate takes place and amendments may be put to a vote. The house then
either passes or defeats the Bills.
(5) Other House
When a Bill has passed one house, it is send to other house, where it follows
a similar pattern. If the second house amend the Bill, the Bill must be
returned to the first house for it approval
(6) Royal Assent
When the Bill has passed both house with accordance with article 68, it is
sent to Yang di- Pertuan Agong For the Royal Assent. The bill becomes a law
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upon publication.
1.13 Jurisdiction of the Courts
As a general rule civil and criminal courts are open to public. When an
accused person has committed a criminal offence and does not plead guilty,
he will be tried in a court of competent jurisdiction. The court which
administer civil and criminal justice are those constituted under the
constitution, or the Courts Judicature Act 1964 or by Subordinate Courts Act
1948 or by any other law presently in force.
1.13.1 Penghulu’s Court.
Trail Jurisdiction.
Section 95 Subordinates Court Act 1948 provides that :
The Penghulu’s court can try minor offences listed in the ‘Surat Kuasa’ and
punishable with a fine not exceeding RM 25/-. The Offender must be an
Asian.
Sentencing Jurisdiction
Section 96 Subordinate Courts Act 1948 The penghulu can impose fine not
exceeding RM25/-
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1.13.2 2nd Class Magistrate
Trail Jurisdiction.
Criminal
Section 88 Subordinate Courts Act 1948 2nd Class Magistrate can try
offences punishable with:
a) imprisonment not exceeding 6 months; or
b) a fine only
Sentencing Jurisdiction
Section 89 Subordinate Courts Act 1948 2nd Class Magistrate can punish an
offender with:
a) imprisonment not exceeding 6 months, or
b) a fine not exceeding RM 1000; or
c) both
Civil
Section 92 Subordinate Courts Act 1948 – monetary jurisdiction up to RM
3000.00
1.13.3 1st Class Magistrate
Trail Jurisdiction
Section 85 Subordinate Courts Act 1948 – 1st Class Magistrate can try
offences:
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a) punishable with imprisonment not exceeding 10 years, or
b) punishable with fine only or
c) under Section 392 Penal Code i.e robbery on the highway between sunset
and sunrise punishable with a maximum of 14 years imprisonment, or
d) under Section 457 Penal Code i.e. house breaking at night to commit theft
punishable with a maximum of 14 years imprisonment.
Section 83 Subordinate Courts Act 1948 – 1st Class Magistrate can:-
a) issue warrants, summons or other processes of the court;
b) make orders relating to adjournments, remand, bail and transfer of the
case to the sessions court;
Section 9 Criminal Procedure Code gives power and authority to the
Magistrate:-
a) to hear criminal trials
b) to issue warrants, summons or other processes of the court
c) make orders relating to adjournments, remand, bail and transfer of the
case to the sessions court
d) to hold inquiries of death.
Sentencing jurisdiction:
Section 87 (1) Subordinate Courts Act 1948 1st Class Magistrate can punish
the offender with:
a) imprisonment not exceeding 5 years; or
b) fine not exceeding RM 10,000/-; or
c) whipping up to maximum 12 strokes
d) a combination of (a)-(c)
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e) in a civil matter the Magistrate can fine up RM 25,000/-
Civil
Section 90 Subordinate Courts Act 1948 – Monetary jurisdiction up to RM
25,000.00
1.13.4 Sessions Court
Trail Jurisdiction
Criminal
Section 64 Subordinate Courts Act 1948 A Sessions court can try any
offences except those punishable with death
Sentencing Jurisdiction
Section 64 Subordinate Courts Act 1948 can pas any sentence except death
Civil
a) Section 65(1)(a) Subordinate Courts Act 1948 - Unlimited monetary
jurisdiction in respect of motor vehicle accidents and landlord and tenants
dispute and distress.
b) Section 65(1)(b) Subordinate Courts Act 1948 – On other matters
monetary jurisdiction up to RM250,000.00
c) Section 66(1) Subordinate Courts Act 1948 – This Court may try matter
even if a counter claim exceeds Plaintiff’s claim but this court will not give
judgement in excess of the monetary jurisdiction limit .
d) Section 66(2) Subordinate Courts Act 1948. The High Court has the power
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to or make an order the matter to be transferred to the High Court.
1.13.5 High Court
Trial Jurisdiction
Criminal
Section 22 Court Judicature Act 1964 - a High Court can try any offences and
offences under Chapter VI of the Penal Court and under any written law
Court may pass any sentence allowed by law including death.
Civil
The High Court has no monetary limits and can try any case with any amount
of money. The High court can try all matters except which is expressly
excluded by the Federal Constitution.
INTRODUCTION TO MALAYSIAN LEGAL SYSTEM, THE CONCEPT AND SOURCES
OF LAW
The word law is so difficult to define, particularly as it is used in many
different ways. Law performs various functions in society and its
pervasiveness may impinge our lives. Amongst others, we are compelled by
law to have a birth certificate and an identity card etc
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What is justice?
Justice refers to fairness or rightfulness. However, what is justice in Malaysia
may not necessarily mean justice in other parts of the world. Justice must not
only must be done but seen to be done. That’s why we have open court
system.
CLASSIFICATION OF LAW
Law may be divided into :
Public Law
Private Law
International
1.Public Law
Public law regulates the relationship between the citizen and the State.
Example. In a murder case where Azizul murdered Samdan. Therefore here
Azizul has committed a crime which is against the State (King’s law) – R v
Azizul. (R= REX). Public law is divided into constitutional law, administrative
law and criminal law.
Constitutional Law – defines the structure of government and the right of
individual under that government.
Administrative law – regulates the duties and exercise of powers by
administrative authorities.
Criminal Law – deals with acts or omissions which are offences against the
State and for which the offender is liable to be tried and if found guilty, will
be punished according to the law.
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2. Private Law
Private law deals with the relation between a citizen and another. It is also
known as Civil law. It includes contract, Family Law, Tort, Land Law and
commercial law in general. Legal action may be commenced or initiated by
individuals seeking for damage or compensation Example where Azizul and
Samdan entered an agreement and Samdan breached the contract. Here
Azizul has a cause of action against Samdan. Azizul v Samdan.
3.International Law
Includes Private and Public International Law.
Public international law deals with relationship between states. Eg. Border,
territorial waters etc.
Private International law is concerned with the application of various national
laws of the facts of a particular case involving two or more countries eg.
System of law applicable to a marriage between 2 different nationals in a
third country
SOURCES OF LAW
The main sources of law are:-
a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Judicial Decision
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g. Principles of English Law
h. Islamic Law
FEDERAL CONSTITUTION
Malaysia has a written constitution unlike the United Kingdom. The Federal
Constitution is the supreme law of the land. Generally, any law which is
inconsistent with the Federal Constitution is invalid. The Malaysian
Parliament functions under a written constitution and is governed by it. Its
law making power is limited by the provisions in the constitution. However
our Parliament as a legislative body has the capacity to amend , repeal and
make new constitution by way of two third majority vote of the both houses
of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution
also establishes a constitutional Monarchy and a Federal System of
Government.
In England Parliament is Supreme and has full power to make law on any
matter.
According to Dicey:
‘ The Principle of Parliamentary sovereignty means neither more nor less
than this, namely that Parliament has, under the English constitution, the
right to make or unmake any law whatever; and further that no person or
body is recognized by the law of England as having a right to override or set
aside the legislation of Parliament’
How far is this true after the signing of treaty of Rome in 1972?
THE STATE CONSTITUTION
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The 13 States of Malaysia have individual constitutions which provide for a
single chamber Legislative Assembly in each state. The government is
headed by a Menteri Besar or a Chief Minister. (In the Malay States the MB is
assisted by a cabinet known as the Executive Council) In Sabah & Sarawak,
members of the Executive Council are known as State Ministers.
LEGISLATION
It refers to laws made by a person or body which has power to make law. In
Malaysia, Parliament and Legislative Assemblies have powers to enact laws
in their respective areas. Laws made by Parliament may extend to the whole
country. However, laws enacted by a State Assembly only apply to that
particular state only.
Examples: Act - Federal Law made by Parliament
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an emergency when
Parliament is not sitting concurrently.
ENGLISH LAW
The legacy of English Law remains in Malaysia even after independence. The
English Law is adopted so far as they were suitable to local conditions. Many
of the local laws especially those affecting trade, commerce and banking
were patterned on English Models (or in some instance other colonial laws)
SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION
Also known as delegated legislation. A statute will confer power on an
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authority for it to enact rules and regulation. An example of delegated
legislation is the parking by laws enacted by various councils under powers
conferred on them by the State Local Government Enactments.
THE COMMON LAW
Refers to law laid down by judges sitting in the Superior Courts as distinct
from statute law enacted by the legislative.- Judge made law. This system
was inherited from England
ISLAMIC LAW
Applicable to Muslims only and administered in the Syariah Courts. The
courts possess civil jurisdiction over offences by Muslim against the religion.
THE DOCTRINE OF JUDICIAL PRECEDENT
Why do lawyers cite previous cases from thick volumes in their arguments
before the court? The answer is because the common law is found in
decision of the superior court. Judges lay down rules when giving the
decisions and these rules are precedents which must be followed in similar
cases.
What about Malaysia? Do we adhere to these principles of judicial
precedent? Even when we have statutes, we still look to the judges
interpretation of the law. The statute must be read in the light of decided
cases.
Judges are required to follow a system, which provides for consistency and
certainty in decision. A judge’s decision in an earlier and similar case
constitutes a precedent and may be binding depending on the hierarchy of
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the courts concerned. Eg the decision of the Federal Court is binding on the
other courts, but the decision of the High Court is binding on the lower courts
and not on the Court of Appeal and Federal Court.
Can a Federal Court Judge divert from a previous Federal Court decision ?
FEDERAL COURT
COURT OF APPEAL
HIGH COURT OF MALAYA HIGH COURT OF SABAH & SARAWAK
SESSIONS COURT
MAGISTRATES COURT 1
MAGISTRATES COURT 2
JUVENILE COURT
PENGHULU
The Judiciary hears and determines civil and criminal matters, and
pronounces on the legality of legislative and executives acts. It may also
interpret the Federal Constitution and State Constitution.
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The High Court of Malaya and Sabah & Sarawak, the Court of Appeal and the
Federal Court are superior courts. The general rule is that the Jurisdiction of
the courts increases as one moves upwards .
There are also several specialised tribunals exercising judicial and quasi
judicial functions eg. Industrial Court and Court Martial. These courts provide
an inexpensive and specialised means of settling disputes between the
parties.
Jurisdiction of the Courts
Penghulu’s Court.
Trail Jurisdiction.
Section 95 Subordinates Court Act 1948 provides that :
The Penghulu’s court can try minor offences listed in the ‘Surat Kuasa’ and
punishable with a fine not exceeding RM 25/-. The Offender must be an
Asian.
Sentencing Jurisdiction
Section 96 SCA ’48 The penghulu can impose fine not exceeding RM25/-
2nd Class Magistrate
Trail Jurisdiction.
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Section 88 SCA ’48 2nd Class Magistrate can try offences punishable with:
a) imprisonment not exceeding 6 months; or
b) a fine only
Sentencing Jurisdiction
Section 89 SCA ’48 . 2nd Class Magistrate can punish an offender with:
a) imprisonment not exceeding 6 months, or
b) a fine not exceeding RM 1000; or
c) both
1st Class Magistrate
Trail Jurisdiction
Section 85 SCA ’48 – 1st Class Magistrate can try offences:
a) punishable with imprisonment not exceeding 10 years, or
b) punishable with fine only or
c) under Section 392 Penal Code i.e robbery on the highway between sunset
and sunrise punishable with a maximum of 14 years imprisonment, or
d) under Section 457 Penal Code i.e. house breaking at night to commit theft
punishable with a maximum of 14 years imprisonment.
Section 83 SCA ‘ 48 – 1st Class Magistrate can:-
a) issue warrants, summons or other processes of the court;
b) make orders relating to adjournments, remand, bail and transfer of the
case to the sessions court;
Section 9 Criminal Procedure Code gives power and authority to the
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Magistrate:-
a) to hear criminal trials
b) to issue warrants, summons or other processes of the court
c) make orders relating to adjournments, remand, bail and transfer of the
case to the sessions court
d) to hold inquiries of death.
Sentencing jurisdiction:
Section 87 (1) SCA ‘ 48: 1st Class Magistrate can punish the offender with:
a) imprisonment not exceeding 5 years; or
b) fine not exceeding RM 10,000/-; or
c) whipping up to maximum 12 strokes
d) a combination of (a)-(c)
e) in a civil matter the Magistrate can fine up RM 25,000/-
Sessions Court
Trail Jurisdiction
Section 64 SCA ‘ 48 A Sessions court can try any offences except those
punishable with death
Sentencing Jurisdiction
Section 64 SCA ‘ 48 can pas any sentence except death
High Court
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Trial Jurisdiction
Section 22 Court Judicature Act 1964 - a High Court can try any offences and
offences under Chapter VI of the Penal Court and under any written law
Court may pass any sentence allowed by law including death.
Origins of Malaysian Law
Malaysia is a federation of thirteen states and three federal territories,
namely, Kuala Lumpur, Putrajaya and Labuan. The federation has a central
government. The legislative and executive powers of the federation are
divided between the central and state governments. Important matters such
as defense, external affairs and others are under the Federal Government
and matters of local concern, for example, land, mining, and agriculture are
under the state law.
Early Law
Early laws of the Malay states are recorded from the time of the Malaccan
Sultanate which was largely influenced by Hindu, Buddhist, and Islamic
philosophy.
The traditional laws were generally unwritten and only customary in nature.
A Malay Sultan during the Malacca era held absolute power and commanded
absolute loyalty from his subjects. The Sultan could declare war, decide on
the life and death of his subjects, administer justice and maintain law and
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order.
European Colonialism
By the sixteenth century, Malacca was a bustling cosmopolitan port,
attracting hundreds of ships each year. The city was known worldwide as a
centre for trade. Unfortunately, this fame slowly ended when the Europeans
began to extend their power into the East. The Malay Sultanate of Malacca
broke up with the coming of the Europeans into the region, beginning with
the Portuguese, the Dutch and later by the British.
Portuguese Administration
After the Portuguese captured Malacca in 1511, a military and civil
administration was established. Malacca was governed by a governor or
captain. However the Portuguese authorities did not exert their influence
over the communities, who lived outside the city walls. Their interest was in
trade and not in political power.
Dutch Administration
The Dutch defeated the Portuguese and took over Malacca in 1641. A Dutch
administration was immediately established. The Dutch administration was
headed by a governor and assisted by a council comprising of the mayor, the
merchants, a secretary and many others. However, like the Portuguese, the
Dutch were only interested in trade and never attempted to exert their
political authority.
The Constitution
In Malaysia, we have a written constitution known as the Federal
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Constitution. The Federal Constitution of Malaysia was formally adopted on
31st August 1957.
It is the highest law of our country and contains the fundamental rights of
the citizen.
The Constitution guarantees our basic rights such as the right to life and
liberty, right to equality, right to education, right to property as well as
freedom to practice one’s religion.
Other Sources of Law
Common Law
Common Law is the oldest form of law and derived from the English courts
over many centuries.
English colonialists brought common law principles into our country and
these principles formed the foundation of our legal system.
Since written law cannot address fully every aspect of the principles of law,
common law thus provides guidance on areas that are not covered by
written laws.
The Malaysian legal system and its laws follow closely English Common law
principals and also apply judgements and decisions by the English Courts in
deciding a case.
Statutes
A statute is a formal and written law of our country. When Parliament passes
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a law, it becomes an Act which is also known as statute law.
Customary and Native Law
Customary law is of little relevance to the communities in West Malaysia
today. However, for the natives of Sabah and Sarawak, customary law
remains an important source of law, particularly as a means of social control
in remote communities and in the administration of estates, family law and
inheritance and as well as the election of traditional ruling chiefs.
Syariah Law
When the traders from the Arabian Peninsular and Gujarat (India) landed on
the shores of Malacca in the fifteenth century, they brought along with them
Islam. When the Malacca Sultanate embraced Islam, the Malays since then
became Muslims and were governed by Islamic laws.
The main source of Syariah law is from the Al-Quran, Hadis and Sunnah.
Syariah Law in Malaysia applies only to Muslims and comes under the control
of the Syariah Court. It covers matters such as marriage, divorce, adoption,
wills and other offences under the Islamic law
International Law
There are two methods by which international law may be incorporated into
domestic law. The first is through legislation. Legislation may expressly enact
the terms of a treaty or convention to which Malaysia may be a party or it
may impliedly do so by requiring domestic law to be interpreted in
accordance with a treaty or convention.
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The second method is through the common law process. Courts may,
through the interpretation of domestic law, introduce principles of
international law into the domestic system.
As far as human rights are concerned, the most important international
document is the Universal Declaration of Human Rights 1948 (UDHR) which
was adopted by all members of the United Nations. The UDHR is the
common yardstick to measure a nation’s commitment to and respect for
human rights standards