malaysian legal system revision
TRANSCRIPT
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.