topic 1 the malaysian legal system

8/10/2019 Topic 1 the Malaysian Legal System

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The Malaysian Legal

SystemTopic 1

1

Copyright lecture notes prepared by,

Mr Ravi Nagarathanam


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2

Copyright lecture notesprepared by, Mr Ravi

Nagarathanam

Activity:

Brainstorm

What comesto

your mindwhen you

heard thewordLaw?


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Law

Oxford Dictionary:

The system of ruleswhich a particular

country orcommunity

recognizes as

regulating theactions of its

members and whichit may enforce by

the impositionpenalties.

Sir JohnSalmond

(1862-1924):The body ofprinciples

recognized andapplied by thestate in the

administrationof justice.

Article 160(2),Federal Consituition

1957:

Written law;common law in so

far as it is inoperation in the

Federation or anypart thereof; anycustom or usage

having the force oflaw in the

Federation or in any

part-theoreof.

Copyright lecture notesprepared by, Mr RaviNagarathanam

3


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The Federal Constituition

Art 4- The supreme law of the land; any lawspassed after Merdeka Day which isinconsistent with this Constitution shall to theextend of inconsistency, be void.

The FC enshrines the basic or thefundamental rights of individuals. These

rights written in the Constitution can only bechanged by a two-thirds majority of the totalnumber of members of the legislature. This isin contrast to normal laws which can beamended by a simple majority.


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R Rethana v The Government ofMalaysia & Anor (1988)

Facts:

Plaintiff sought a declaration that an Act of Parliament

namely S31 & S42 of Employees Social Security Act

1969 (SOCSO) were ultra vires the Federal Constitution

Art d8(1) that provided equal protection of the law for all.

He alleged that the act precluded employees from suing the

employer.

Held:

Court dismissed plaintiff claim as classification by SOCSO

was fair & reasonable.


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Repco Holdings Bhd v PublicProsecutor (1997)

Facts:

Applicant was charged by Security Commission for

infringing Security Industry Act 1983 & Security

Commission Act 1993.

Applicant claimed that the 2 Sections infringe Art 145

(3) of the Federal Constitution.

Held:

Court held that both Sections to be unconstitutional, null &

void.


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The Role of Parliament

Enacts law at Federal level

Within limits prescribed by FederalConstitution

Law enacted before 31.08.1957 arecalled Ordinance

Law enacted after 31.08.1957 are

called Acts

Parliament can enact laws in matterslisted in list I of the Nine Schedule


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Copyright lecture notesprepared by, Mr RaviNagarathanam 8

Classification of Law

Public law(individual+state)

Constitutionallaw

Criminallaw

International law(state+state)

Publicinternational

law

PrivateInternational

law

Private law(individual+individual)

e.g. Law ofcontract

e.g. LawOf trust


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ContCopyright lecture notesprepared by, Mr RaviNagarathanam 9

Public Law

The law which governs the relationship between

individuals and the state.

Public law may be further subdivided into two categoriesi.e. constitutional law and criminal law.

Constitutional law lays down the rights of individuals inthe state. It deals with questions such as supremacy ofParliament and rights of citizens. It also covers areasdealing with state and federal powers.

Criminal law codifies the various offences committed byindividuals against the state. A crime is a wrong againstthe state for which punishment is inflicted by the state


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Cont

International Law

The law which governs the relationship between stateand state.

It may be subdivided into two categories:

1. Public international law2. Private international law.



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Cont

Private Law

Private law concerned with matters that affectthe rights and duties of individuals amongstthemselves.



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Sources of MalaysianLaw


Written Law

FederalConstitution

StateConstitution

Legislation

Subsidiarylegislation

UnwrittenLaw

English law

Judicialdecision

Customarylaw

Islamic Law

SyariahCourts

Only forMuslims


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Written Law

FederalConstitution

Supreme lawof Malaysia

Provides thepowers of the

Federal &

StateGovernments

Providesfundamental

rights of

individual



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Written Law

State Constitution

Regulates State GovernmentsContains provisions derived from 8thschedule of

the Federal Constitution

Legislation

Enacted by Parliament and the state assemblies

Act: laws made after 1957

Ordinances:

laws made 1946-1957 laws in Sarawak



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Written Law

Laws made under anyActs, Enactments orOrdinances

Very important becausespecify the laws in moredetail and for everydaymatters

Subsidiary legislationmade in contravention ofeither a parent Act or theConstitution is void.

Example:

Parent Act (main law) :Hire-Purchase Act 1957

Subsidiary Legislation :Hire-Purchase(Repossession) Regulation

Subsidiarylegislation



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Unwritten Law

English law:

- Applicable in the absence of local laws

- Suitable to local circumstances

English Commercial Law?

Section 5(2) of the Civil Law Act 1956, English commercial law

applies to Penang, Malacca, Sabah & Sarawak

If no local laws applicable

Today, many local laws dealing with commercial matters

e.g. Contracts Act 1950, Partnership Act 1961, Companies Act

1965



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Unwritten Law

Judicial decisions:

- Judgesdecision

- Doctrine of binding precedent : Not decide

cases arbitrarily must follow precedents

(previous decisions of similar situations).

Each court is bound by the decisions of courts of

the same level or higher than it in the same

hierarchy of courts, whether or not it believes a

decision is correct



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Unwritten Law

Customary law: Customs practiced by local people

Generally, customs relating to family law

are given legal force by courts in

Malaysia-marriage, divorce, inheritance



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CUSTOMS

MALAY CHINESE INDIAN

ADAT

PERPATIH

CHINESE

CUSTOMARY

LAW

INDIAN

CUSTOMARY

LAW

ADAT

TEMENGGUNG


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Islamic Law

Applicable to Muslims only, does not applyto non Muslims

family matters (marriage and divorce)

estate matters (inheritance, wasiat)



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The system of courts and administration of justice


FEDERAL COURT

COURT OF APPEAL

High Court in MalayaHigh Court in

Sabah & Swak

Sessions Court

Magistrates Court

Penghulus Court

Syariah Court

Session Court

Native Court Syariah Court

Magistrates Court

Juvenile Court Juvenile Court


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COURT SYSTEM

Courts are divided into two categories:

(i) Superior Courts:

- Federal Court

- Court of Appeal

- High Court

(ii) Subordinate Courts:

- Sessions Court

- MagistratesCourt

- MagistratesCourt for Children



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Federal Court (FCt)

FCt replaced the Supreme Court in mid-

1994 as the highest court.

FCt is the highest court in Malaysia.

Instituted by Article 121 of the Federal

Constitution.



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2. Court of Appeal (COA)

The COA was established under Article 121 of the Federal

Constitution.

On 24.06.1994, the COA was created to act as an intermediate

appeal chamber before proceeding straight to the FC.

The composition of its judicial personnel is prescribed in Article

122A of the Constitution.

Proceedings is heard and disposed of three judges or such

greater uneven number of judges as the President may in any

particular case determine i.e. three judges at any one time OR

more (but must be of uneven numbers i.e. 5, 7, 9,11) Decisions

are made by majority i.e. 2:1 (2 to 1), 3:2, 4:3, 5:4.Copyright lecture notesprepared by, Mr RaviNagarathanam 24


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Court of Appeal

Section 50 and 67 of the Courts of Judicature Act 1964

The court can hear both Civil and Criminal appeal cases.

Civil Appeal Cases

Has jurisdiction to hear and determine civil appeals for cases

where the amount or value of the subject matter of the claim ismore than RM 250,000.

If the amount is less than RM250,000 the parties must get the

permission from the Court of Appeal.

Criminal Appeal Cases

Has jurisdiction to hear and determine any appeal against the

decision of the High Court.Copyright lecture notesprepared by, Mr RaviNagarathanam 25


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3. High Court (HC)

Established under Article 121(1) of the FederalConstitution.

There are 2 High Courts of co-ordinate jurisdiction inMalaysia:(i) High Court for West Malaysia(ii) High Court in Sabah and Sarawak

Each of the two High Courts is headed by a Chief Judge.

Sections 22, 23 and 24 of Courts of Judicature Act 1964 lay down thecriminal and civil jurisdiction of the High Court.

Deals with offences punishable with death.

The general jurisdictional rule in relation to criminal matters isreflected in Section 22(1)(a) of the Courts of Judicature Act 1964.

Has unlimited jurisdiction to try all civil proceedings within the localjurisdiction of the court.



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4. Sessions Court (SC)

A SC is under the charge of a SC judge.

Under Section 54 of the Subordinate Courts Act, the SC

assumes a limited supervisory role over the Magistratesand Penghuluscourts.

The purpose for such action is to ensure the correctness,

legality or propriety of the decision recorded or arrived at,

and the regularity of the proceedings.



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Session Court

Civil cases

All suits where the amount in dispute or the subject matter

does not exceed RM250,000.

May entertain cases above RM250,000 if it concerns motor

vehicles accident, landlord and tenant.

May not entertain even if its below RM250,000 if it concerns;

divorce, bankruptcy, enforcement of trust, specific

performance, injunction. (determined by the High Court)

Criminal cases

All offences other than offences punishable with death. May

impose any sentence allowed except sentence of death.Copyright lecture notesprepared by, Mr RaviNagarathanam 28


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MagistratesCourt (MC)

Familiar to most urban people as it isestablished in all major towns and sometimes

goes on circuit to regional areas.

This court has the jurisdiction to hear civil cases

and criminal cases

This court has the jurisdiction to hear civil cases and criminal cases. There

are two (2) types of classes of magistrate i.e. First Class and Second Class



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First Class Court

Criminal To try all offences punishable with up to 10 years

imprisonment or with fine only and offences related to punishment for

robbery and house breaking by night.

Civil - To try all litigations where the matter in dispute or subject

matter does not exceed RM25,000.

Second Class Court:

Civil - Performs minor function i.e. granting bail, mentioning cases.

Criminal Only to deal with cases where the maximum punishment

imposed is no more than 12 months imprisonment or which is

punishable with a fine only.



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MagistratesCourt for Children (MCC)

Established under the Child Act 2001 (Act 611).

The court has the jurisdiction to hear cases regarding offenders between the

age of 10 18 years.

It can try all offences except those punishable by death and it is presided by

a First Class Magistrate and 2 advisors.

The philosophy of creating a special court is that children need care and

attention and offenders should be treated differently from adult ones and

with compassion.

When a juvenile is found guilty, they are sent to correctiveschool i.e. Henry

Gurney School, Melaka. Copyright lecture notesprepared by, Mr RaviNagarathanam 31


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7. PenghulusCourt

At the lowest level of the court hierarchy in WestMalaysia

Presided by a Penghulu or Headman appointed by

the state government for a mukim which is an

administrative district

To try civil disputes where the subject-matter does

not exceed RM50 in value and in criminal cases, to

impose a fine not exceeding RM25.



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Tutorial 1 (Case Study)

Form a group of three (3) peoples.

Browse the internet and look for any cases related to

business law (e.g. contract/ sale of goods/

partnership/ agency) that tried in court either in side

or out side of Malaysia.

Read the factsand heldof the case carefully.

Analyze the case heldand give your opinion.

Present your case study on the next class.

You may present either in English or Malay.


topic 1 the malaysian legal system

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