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Topic 1: MALAYSIAN LEGAL SYSTEM

TOPIC TOPIC OUTLINE OBJECTIVES/LEARNING OUTCOMESTopic 1: MALAYSIAN LEGAL SYSTEM

Statutes:- Subordinate Courts

Act 1948- Courts of

Judicature Act 1964

1. Classification of Law Public law Private law International law

2. Sources of law Written law Unwritten law Muslim law

3. Judicial system in Malaysia Subordinate courts in

Peninsular Malaysia- Penghulu’s Courts- Magistrates’ Courts- Juvenile Courts- Sessions Courts Subordinate courts in

East Malaysia- Native Courts- Magistrates’ Courts- Juvenile Courts- Sessions Courts Superior courts in

Malaysia- High Court- Industrial Court- Court of Appeal- Supreme Court

Objective:- To introduce the concept of law as

understood in Malaysia.- To provide basic knowledge as to

where Malaysian Law can be found.- To introduce the hierarchy of courts,

their jurisdiction and powers.

Learning outcome:- State 3 classification of law.- Define law according to various

sources.- Outline the hierarchy of court and

jurisdiction.

Business Law Faezah@Abby Ibnu

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LAW

Public Law(Individuals and the State)

International Law(Law that prevails between

States)

Private Law(Individuals between

themselves)

Public International

Private International

Constitutional Law(Rights of the

individuals in the State)

Criminal Law(Offences against

the State)

Property Law

Family Law

Contract (Rights and

obligations that arise by

agreement)

Tort (Offences against

individuals)

Company Law

Trust (Relationship

between trustee and beneficiary)

Sale of Goods

Hire Purchase Negotiable Instrument

Insurance Agency Partnership

Administrative Law

- A general rule of conduct.- Is defined as the body of enacted or customary rules recognized by a community as

binding.- Law consists of the rules recognized and acted on by courts of justice. - May be defined as a body of rules which are enforced by the State.

1. CLASSIFICATION OF LAW - Law regulates the citizens in their relations with the State and with one another.


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Classification DescriptionsPublic Law 1. Law that governs the relationship between individuals and the State.

2. It is further subdivided into areas of law dealing with matters affecting the individual-State relationship namely a.Constitutional law: lays down the rights of individuals in the State.

It deals with questions such as supremacy of Parliament and rights of citizens.

b.Criminal law: concerns those acts or omissions which are offences against the State and for which and offender is liable to be tried and, if found guilty, punished.

c. Administrative law: regulates the duties and exercise of powers by administrative authorities.

Private Law 1. Also known as civil law.2. Regulates matters that affect the rights and duties of individuals

among themselves.3. It is intended to give compensation to persons injured, to enable

property to be recovered from wrongdoers, and to enforce obligations.

4. It covers areas such as contract, tort, trust, company law, property law and family law.

International Law

1. Defined as a body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and consequently commonly do observe, in their relationship with each other.

2. Subdivided into 2 categories namelya.Public international law: law that prevails between States.b.Private international law: it is a part of municipal law. It consists of

the rules that guide a judge when the laws of more than one country affect a case.


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Written Law Unwritten Law

Customs Judicial Decisions

Federal Constitution

State Constitutions

Legislation

Equity Common Law

Subsidiary Legislation

Sources of Malaysian Law

English Law

Islamic Law

2. SOURCES OF LAW - Legal rules that make up the law in Malaysia.

Written law Unwritten Law

1. Most important source of law.2. Includes:

- Federal Constitution- State constitutions - Legislation- Subsidiary legislation

3. Federal Constitution- Supreme law of Malaysia.- Lays down powers of the Federal and

State Governments.- Enshrines the basic/fundamental rights

of the individual.- These rights written into the

constitution can only be changed by two-thirds majority of the total number of members of the legislature.

4. State constitutions- Each State possesses its own

constitution regulating the government of the State.

1. Portion of Malaysian law which is not written i.e. law which is not enacted by Parliament or the State Assemblies and which is not found in the Federal and State Constitutions.

2. Includes:- Principles of English Law applicable to

local circumstances.- Judicial decisions of the superior courts

namely the High Court, the Court of Appeal and the Federal Court.

- Customs of the local inhabitants which have been accepted as law by the courts.

3. English Law- Forms part of Malaysian Law.- Mainly found in English common law

and rules of equity.- The reception of English Law is

specifically permitted by virtue Section


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- Contain provisions pertaining to state matters as provided under the Federal Constitution.

5. Legislation- Laws made by a person or body which

has the power to make law.- Refers to law legislated by Parliament

at federal level and by the various State Legislative Assemblies at state level.

- Laws enacted by Parliament after 1957 and laws in Sarawak are called ‘Ordinances’.

- Laws made by the State Legislative Assemblies (except Sarawak) are called ‘Enactments’).

- Parliament and State legislatures are not supreme as they have to enact laws subject to the provisions set out in the Federal and State constitutions.

- Legislature as a source of law has become more important than case law or precedents as it is being increasingly used as a means of repealing, amending, enacting or codifying the law.

6. Subsidiary legislation- Any proclamation, rule, regulation,

order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’.

- Also known as subordinate/delegated legislation.

- They are rules and regulations enacted by an authority under powers conferred on it by statute.

- Very important as legislation by Parliament and the State legislatures is insufficient to provide the laws required to govern everyday matters.

- Deals with the details about which the legislature has neither the time nor the technical knowledge to enact laws.

3(1) and 5(1) of the Civil Law Act 1956.- 2 limitations:

It is applied only in the absence of local statutes on the particular subjects. Local law takes precedence over English Law as the latter is only meant to fill on the lacuna in the legal system in Malaysia.

Only that part of English law that is suited to local circumstances will be applied. This is necessary because customs and religions in Malaysia differ from England.

4. Judicial decisions- Refers to the law as developed through

cases decided in the superior courts.- Sometimes referred to as ‘judge-made

law’.- Under the doctrine of binding judicial

precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases.

- Judicial precedent is a judgment or decision of a court cited as an authority for the legal principles embodied in its decision.

- In the case of a binding precedent, each court is bound by the decisions of courts of the same level or higher than it in the same hierarchy of courts.

5. Customs- Refers to the customs of the local

inhabitants which have been accepted as law.

- Mainly relates to family matters, e.g. marriage, divorce and inheritance.

- In Sabah & Sarawak, native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.

- In Peninsular M’sia, there are 2 main Malay customary law i.e. the adat perpatih and adat temenggong.

Islamic Law Native Law

1. Applicable to Muslims and administered in the Syariah Courts.

2. The power to administer Islamic law is primarily of the States (except for the federal territories).

1. Applicable to the natives of Sabah and Sarawak only.

2. Natives are the indigenous people of these two States and the legal definition of ‘Native’ is found in the Federal


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Superior

Courts

Subordinate Courts

3. The Syariah Court is a state court established by state law whereas the ordinary civil courts are federal courts.

4. The religious courts possess civil jurisdiction in proceedings between parties who are Muslims and limited criminal jurisdiction over offences by Muslims only.

5. Does not apply to non-Muslims.

Constitution and State Law.3. There is a hierarchy of Native Courts in

both States exercising jurisdiction over natives in respect of their personal laws such as breach of native customs, religion and matrimonial matters.

3. JUDICIAL SYSTEMS IN MALAYSIA

- There are 2 types of trials, criminal and civil. The hierarchy of courts begins from the Magistrates’ Court, Sessions Court, High Court, Court of Appeal and Finally Federal Court.

- Jurisdictions of the courts in civil and criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964.

- Article 121 of the Federal Constitution provides for 2 High Courts of coordinate jurisdiction, the High Court in Malaya and the High Court in Sabah & Sarawak. – This creates 2 separate local jurisdictions of the courts i.e. for Peninsular Malaysia and East Malaysia.

- The highest position in the judiciary of Malaysia is the Chief Justice of Malaysia, followed by President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah & Sarawak.

- The superior courts are the High Court, Court of Appeal and the Federal Court.- The subordinate courts are the Magistrates’ Court and Sessions Court.


Court of Appeal

High Court(Malaya)

High Court(Sabah & Sarawak)

Sessions CourtSessions Court

Magistrates’ Court Magistrates’ Court

Syariah Court

Native Court

Syariah Court

Small Claims Court

Court for

Children

Federal Court

Court for

Children

Small Claims Court

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Penghulu’s Court

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Penghulu’s Courts

1. Sec. 94 – 97 SCA’482. Lowest level of subordinate courts in Peninsular Malaysia.3. Presided over by a penghulu or headman appointed by the State Government for a

district.4. Penghulu settle disputes informally.5. Hear civil cases which the subject matter does not exceed RM50 in value, all parties are

persons of Asian race and understand Malay language.6. In criminal case, restricted to the trial of offences of a minor nature which specifically

enumerated under his power and which can adequately punished by a fine not exceeding RM25.

7. Any person charged with an offence before a Penghulu’s Court may elect to be tried by a Magistrates’ Court.

8. If the order made by a Penghulu’s Court not being obeyed, the court may report the matter to a Magistrates’ Court and the Magistrates’ Court may enforce the order as though it were an order made by itself.

Magistrates’ Courts- Sec. 85 – 93 SCA’48- Deals with minor civil and criminal cases.- Presided by a Magistrate.- Divided into First Class and Second Class Magistrates.

First Class Magistrates

1. Legally qualified and possesses greater powers.

2. Criminal jurisdiction: - Possesses jurisdiction to try all offences

for which the maximum term of punishment does not exceed 10 years’ imprisonment, or all offences punishable with fine only and offences under sec. 392 (robbery) and 457 (lurking, house-trespass, house-breaking at night) of the Penal Code.

- In Peninsular M’sia, Magistrate shall have jurisdiction to hear and determine criminal appeals from Penghulu’s Court.

- Magistrate may pass any sentence not exceeding:a.5 years’ imprisonment; b.RM10,000 fine; c. Up to 12 strokes whipping; ord.A combination of any of the above.

3. Civil jurisdiction:- Possesses jurisdiction to try all actions

and suits where the subject matter does

Second Class Magistrates

1. Not normally appointed.2. Criminal jurisdiction:

- Possesses jurisdiction to try all offences for which the maximum term of punishment does not exceed 12 months’ imprisonment, or all offences punishable with fine only.

- Where a person found guilty, Magistrate may pass any sentence not exceeding:a.6 months imprisonment; b.RM1,000 fine; orc. A combination of any of the above.

3. Civil jurisdiction:- Possesses jurisdiction to try original

actions or suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand on money payable by the defendant, with or without interest, not exceeding RM3,000.


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not exceed RM25,000 in value.


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Sessions Courts

1. Sec. 63 – 69 SCA’48.2. The highest of the subordinate courts.3. Presided by Sessions Court judge.4. Criminal jurisdiction:

- Hear all offences other than offences punishable with death.- May pass sentence allowed by law other than the death sentence.

5. Civil jurisdiction:- Have jurisdiction to try all actions and suits where the subject matter does not exceed

RM250,000 in value.- Have unlimited jurisdiction to try all actions and suits in respect of motor vehicle

accidents, landlord and tenant and distress.- Exclusion from jurisdiction: matters relating to land, specific performance or recession of

contracts, injunction, probate and administration of estates, divorce, bankruptcy, trusts and accounts.

High Courts

1. Article 121 of the Federal Constitution.2. High Court consists of 2 Chief Judges, one in Peninsular Malaysia and one in Sabah &

Sarawak.3. Jurisdiction:

a)Original- Unlimited criminal and civil powers.- Have jurisdiction to hear all subject matter with no monetary limits except which are

expressly excluded by the Federal Constitution i.e. matters concerning validity of written law by Parliament or State, dispute between Federation and States and one State and another and any matter concerning the interpretation of constitution to the Federal Court.

- Any civil matter which cannot be determined in the subordinate courts is heard before the High Court.

- In criminal cases, no case may be brought to the High Court unless an offender has been properly committed for trial after a preliminary hearing in a Magistrates’ Court.

b)Appellate- Hears civil and criminal appeals from the Magistrates’ and Sessions Courts.- Possesses the power to refer any points of law arising in the appeal for the decision of

the Court of Appeal if it feels that it is in the public interest and of paramount importance.

c)Supervisory and revisionary- Have general supervisory and revisionary jurisdiction over all subordinate courts.

Court of Appeal

1. Part III of Court of Judicature Act 1964.2. Constitutes the President of the Court of Appeal and 8 Court of Appeal Judges.


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3. Every proceeding shall be heard and disposed of by 3 judges or such greater uneven number of judges as the President may determine.

4. In the absence of the President, the senior member of the court shall preside.5. Has jurisdiction to hear and determine any appeal against any High Court decision on

criminal matters.6. Has jurisdiction to hear and determine civil appeals generally for cases where the subject

matter of the claim is at least RM250,000 in value.7. Where an appeal has been heard and disposed of by the Court of Appeal, the Court of

Appeal has no power to review the case i.e. the court has no power to re-open, re-hear nor re-examine its decision for whatever purpose.

Federal Court

1. Part IV of Court of Judicature Act 1964.2. Highest court in Malaysia.3. Consists of the Chief Justice, the President of Court of Appeal, the Chief Judge of Malaya

and Chief Judge of Sabah and Sarawak, and 6 Federal Court Judges.4. Every proceeding shall be heard and disposed of by 3 judges or such greater uneven

number of judges as the Chief Justice may determine.5. Has jurisdiction in matters including the following:

a)To hear civil and criminal appeals from decisions of a High Court.- This appellate function occupies the bulk of the court’s work.- In civil appeals a litigant may appeal on a point of law or upon the rejection or

admission of evidence in a lower court.- In criminal cases, an appeal may be made against acquittal or conviction or against

sentence on a point of law or fact.b)To exercise exclusive original jurisdiction in those matters conferred on it under Article

128(1) and (2) of the Federal Constitution.- It can hear disputes on any matter between any State and the Federal Government.- It can also pronounce on the validity of any federal or state legislation as being in

excess of powers.c)To determine constitutional questions which have arisen in the proceedings of the High

Court but referred to the Federal Court for a decision.d)To give its opinions on any question referred to it by the Yang Dipertuan Agong

concerning the effect of any provision of the Constitution which has already arisen or appears likely to arise.

Courts for Children

1. Have been set up to deal with criminal offenders below 18 years old.2. Consists of a first class magistrate assisted by 2 lay advisers, one of whom shall be a

woman.3. Functions of the advisers: to inform and advise the court with respect to any consideration

affecting the punishment or other treatment of any child or young person brought before it.

4. Have jurisdiction to try all offences except those punishable by death.5. Court is closed to members of the public in order to protect the young offender from

publicity.6. If the offender is found guilty, he/she may be sent to one of the approved institutions or

schools where he/she is given corrective education.


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7. If the offence does not involve homicide, the court may discharge him/her on condition that he/she executes a bond, with/without sureties, to be of good behavior and to come for sentencing when called upon.

8. Such a bond may also contain other conditions, e.g. the offender may be placed under the supervision of a probationary officer.

9. If the offender is aggrieved by any finding or order of the court, he may appeal to High Court against the finding or order.


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