REVISION

TOPIC 1: INTRODUCTION TO LEGAL SYSTEM “law” “legal system” ‘legal pluralism” “written law”, “unwritten law” etc

etc

Just refer to your tutorial presentation

TOPICS 2: MALAYSIAN LEGAL SYSTEM

1. Straits Settlements2. Malay States3. Borneo States

Straits Settlements

Doctrine of imposition/reception -- Penang

Whether Penang was a ceded or a settled territory.

Regina v Willans Fatimah v Logan In The Goods of Abdullah Ong Cheng Neo

Period of legal chaos Describe the legal system Ahpoe v Kehin

Imposition of English Law: Royal Charter of Justice

Contents: law, jurisdiction, courts Proviso

Effect on local law

2nd RCJ: English law was extended to Malacca and Singapore

Identify cases where local custom was recognised

Identify cases where local custom was not recognised

3rd RCJ

Malay States The Malay States were sovereign states Differentiate between SS and Malay States. SS – British colonies, Malay State – mere

protectorates, retained sovereignty. Cases to show sovereignty of Malay States

Informal reception of English law: How? British Residents in FMS, Advisors in UFMS Importation of British Indian statues English court system, English trained judges

The effect on the lex loci of the Malay States i.e., Islamic law and local customs.

The following cases need to be discussed: Mighell v Sultan of Johor (1894) Pahang Consolidated Co. Ltd. V The State of Pahang

(1933); Shaik Abdul Latif & Ors v Shaik Elias Bux (1915) Ramah v Laton (1927); Government of Perak v AR Adam (1914); Mohamed Gunny v Vadvang Kuti (1930); Motor Emporium v Arumugam (1933); Leornard v Nachiappa Chetty (1923); and Haji Abdul Rahman v Mohamed Hassan (1917)

Formal reception Civil Law Enactment 1937 Civil Law Extension Ordinance 1951

Borneo States

Order L-4 North Borneo Civil Law Ordinance

1938 Application of Laws Ordinance 1949 Application of Laws Ordinance 1951

Questions

Describe the legal fiction concocted by English judges on Penang

Describe the legal system in Penang during the period of legal chaos

Explain the effect of RCJ on local law Compare between modes of

reception in SS and MS. Compare the situation before and

during British occupation.

TOPIC 3: SOURCES OF LAW1. Legislation2. Islamic law3. Custom 4. English law

Legislation Relationship between Federal and State

The 3 lists

Types of legislation: Acts, Enactments, Ordinances

Parliamentary procedure, types of Bills Preparliamentary Parliamentary Post parliamentary – Royal Assent, Gazette

Subsidiary legislation – purpose, merits, demerits

Islamic law

1. Historical part: Status of Islam before and during British colonisation.

2. Current position: Status of Islam in the Constitution and in current cases.

3. Administration of Islamic law in Malaysia – jurisdiction of Syariah Courts -- refer to slides

Before the British came Shaik Abdul Latif v Shaik Elias Bux, Ramah v Laton

During British occupation Islamic law was recognised in some cases and was not

recognised in others. In the Goods of Abdullah Fatimah v Logan Chulas v Kolson Sahrip v Mitchell Ainan v Syed Abu Bakar [1939] MLJ 209 PP v White [1940] MLJ 214 Attorney General of Ceylon v Reid [1965] 2 MLJ 34 (PC) Martin v Umi Kelsom [1963] MLJ 1 Re Maria Hertogh [1950] MLJ 214

Discuss position of Islam To what extent Islamic principles are recognised

by courts today

Islam in the Constitution Article 3(1), Article 11, 9th Schedule (comes

under State List)

Che Omar Che Soh Myriam v. Mohamed Ariff Mohd Habibullah v Faridah Dato Talib Latifah Mat Zin v Rosmawati Sharibun

Custom

1. West Malaysia Malay adat Custom of non-Malays Custom of the Aborigines

2. East Malaysia Malay adat Native custom Chinese Custom

West Malaysia

Malay adat Adat perpatih Adat Temenggong Do courts recognise them? Yes, in certain matters. Eg. Election,

harta sepencarian. Give cases.

Custom of non-Malays Do courts recognise them?

1. During British occupation2. After Law reform (M&D) Act 1976 came into force

1. During British occupation? Yes, in certain matters (polygamous union,

legitimacy) Six Widows case, Re Ding Do Ca, Dorothy Yee Yeng

Nam No, in others (eg charitable trust)

Ong Cheng Neo

2. After Law Reform (M&D) Act? Relevance of custom of non-Malays

were substantially reduced. Discuss the Act. Purpose, application, all the

important provisions e.g. registration, no retrospective effect, polygamous marriage not recognised,divorce.

Custom of the Aborigines Most relevant in matters involving

customary land of the aborigines Governed by the Aboriginal Peoples Act

1954 which enables aborigines to dwell in land areas designated for their exclusive use.

Referred to as “aboriginal areas” (section 6) or “aboriginal reserves” (section 7).

Adong bin Kuwau & Ord v Kerajaan Negeri Johor

Sagong Tasi v Kerajaan Negeri Selangor

East Malaysia

Malay custom A mixture of Malay adat and Islamic

law. In Sarawak, it is codified in the

Undang-Undang Mahkamah Melayu (Laws of the Malay Courts)

Comes under the administration of the Islamic Council of Sarawak and the Syariah Courts

Native custom Courts have enforced native

customary law, recognised native customary rights.

Cases

Non-native custom (Chinese custom) Not recognised unless it is found in

legislation. Chan Bee Neo v Ee Siok Choo

English Law –S 3 The applicability of English law in Malaysia in light of S 3 CLA

1956. -very general question. You are required to discuss everything. The contents of S 3: Where there is no written law, apply English law. West Malaysia – common law & equity; the cutoff date East Malaysia – common law , equity & statutes of general application ;

the cutoff dates. The proviso Effect: English law at the cutoff date is binding. Any development after the cutoff date is not binding, merely persuasive But we have the proviso Only apply to civil cases. Common law which is no longer good law is not binding. Don’t forget cases!

More specific questions: Discuss the significance of the cut-

off dates. With reference to the Nepline case,

discuss the steps to be taken in determining whether to apply English law to local cases.

Question on Malaysian common law.

English law – S 5 Discuss the scope and the application of section 5 of the

Civil Law Act 1956. Support your answer with reference to relevant authorities. – also a general question.

Contents of S5: West Malaysia except Malacca and Penang – cutoff date Malacca Penang Sabah Sarawak – cutoff date? ‘merchantile law generally’ ? -- Nagurdas Purshotumdas,

Shaik Sahied v Sockalingam Chettiar Proviso: subject to local statutes

Other cases: on the application of the Sale of Goods Act

TOPIC 4: ADMINISTRATION OF JUSTICE

1. Court system: plural court system; hierarchy.

2. Jurisdictions: civil & criminal; special; original; appellate etc.

3. Special courts/tribunals4. ADR

Why is there a hierarchy of courts?

1. An integral part of the appeal system. Without a hierarchy there could be no appeal. A court hierarchy distinguishes between higher and lower courts. If an incorrect principle has been applied in a lower court, a party to the case should be able to have the dispute reconsidered by a higher court.

2. An integral part of the doctrine of precedent. Some courts are more authoritative than others. A hierarchy ensures that courts are reasonably clear as to which precedent is binding on them.

3. Specialisation the judicial process. The judicial workload is distributed among the various courts by limiting the jurisdiction of each court.

Jurisdiction – subordinate courtsrefer to SCA

Magistrates court First class magistrate – Civil & criminal

jur Second class magistrate – Civil &

criminal jur

Sessions court Civil & criminal jurisdiction

Jurisdiction – High Court

Two High Courts, meaning of “local jurisdiction”

“Specific jurisdiction” – matrimonial & divorce, admiralty, bankruptcy, companies, guardianship, probates, letters of administration.

“Original jurisdiction” “Appellate jurisdiction” “Revisionary jurisdiction and supervisory

jurisdiction”

CJA Section 35. (1) In addition to the powers conferred on the High Court by

this or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the subordinate court such directions as to the further conduct of the same as justice may require.

Jurisdiction – COA

Appellate jurisdiction only

Jurisdiction – Federal Court Original jurisdiction Referral jurisdiction Advisory jurisdiction Appellate jurisdiction

Leave application

COURTS/TRIBUNALS WITH SPECIAL JURISDICTION Special Court for Rulers Court for Children Industrial Court Tribunal for Consumer Claims

ADR

What is ADR? Merits and demerits of ADR

TOPIC 5: THE LEGAL RPOFESSION Who is the AG? Who is the PP? Qualifications for Advocate &

Solicitor Exclusive right to appear and plead

in all the courts of justice; name on the Roll, practising certificate.

Qualifications for Peguam Syarie Legal Aid, qualification – the Means

Test.