Topic 1: MALAYSIAN LEGAL SYSTEM

TOPIC TOPIC OUTLINE Topic 1: 1. Classification of Law MALAYSIAN LEGAL Public law SYSTEM Private law International law Statutes: 2. Sources of law - Subordinate Courts Written law Act 1948 Unwritten law - Courts of Muslim law Judicature Act 3. Judicial system 1964 Malaysia Subordinate courts Peninsular Malaysia - Penghulus Courts - Magistrates Courts - Juvenile Courts - Sessions Courts Subordinate courts East Malaysia - Native Courts - Magistrates Courts - Juvenile Courts - Sessions Courts Superior courts Malaysia - High Court - Industrial Court - Court of Appeal - Supreme Court OBJECTIVES/LEARNING OUTCOMES 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. in in Learning outcome: - State 3 classification of law. - Define law according to various sources. - Outline the hierarchy of court and jurisdiction.

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- 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. LAW

(Individuals and the State)

Public Law

(Law that prevails between States)

International Law

(Individuals between themselves)

Private Law

Public International Law

Private International Law

(Rights of the individuals in the State)

Constitutional Law

(Offences against the State)

Criminal Law

Administrative Law

Property Law

(Relationship between trustee and beneficiary)

Trust

Family Law

(Rights and (Offences against obligations that individuals) arise by agreement)

Contract

Tort

Company Law

Sale of Goods

Hire Purchase

Negotiable Instruments

Insurance

Agency

Partnership

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Classification Public Law

Descriptions

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 namely a. 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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2.

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

Sources of Malaysian Law

Written Law

Unwritten Law

Islamic Law

Customs

Judicial Decisions

English Law

Federal Constitution

State Constitutions

Equity

Common Law

Legislation

Subsidiary Legislation

1. 2.

3.

4.

Written law Unwritten Law Most important source of law. 1. Portion of Malaysian law which is not Includes: written i.e. law which is not enacted by - Federal Constitution Parliament or the State Assemblies and - State constitutions which is not found in the Federal and State - Legislation Constitutions. - Subsidiary legislation 2. Includes: Federal Constitution - Principles of English Law applicable to local circumstances. - Supreme law of Malaysia. Judicial decisions of the superior courts - Lays down powers of the Federal and namely the High Court, the Court of State Governments. Appeal and the Federal Court. - Enshrines the basic/fundamental rights - Customs of the local inhabitants which of the individual. have been accepted as law by the - These rights written into the constitution courts. can only be changed by two-thirds majority of the total number of members 3. English Law - Forms part of Malaysian Law. of the legislature. - Mainly found in English common law and State constitutions - Each State possesses its own rules of equity. constitution regulating the government - The reception of English Law is of the State. specifically permitted by virtue Section

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- Contain provisions pertaining to state 3(1) and 5(1) of the Civil Law Act 1956. matters as provided under the Federal - 2 limitations: Constitution. It is applied only in the absence of 5. Legislation local statutes on the particular - Laws made by a person or body which subjects. Local law takes precedence has the power to make law. over English Law as the latter is only - Refers to law legislated by Parliament at meant to fill on the lacuna in the federal level and by the various State legal system in Malaysia. Legislative Assemblies at state level. Only that part of English law that is - Laws enacted by Parliament after 1957 suited to local circumstances will be and laws in Sarawak are called applied. This is necessary because Ordinances. customs and religions in Malaysia - Laws made by the State Legislative differ from England. Assemblies (except Sarawak) are called 4. Judicial decisions Enactments). - Refers to the law as developed through - Parliament and State legislatures are not cases decided in the superior courts. supreme as they have to enact laws - Sometimes referred to as judge-made subject to the provisions set out in the law. Federal and State constitutions. - Under the doctrine of binding judicial - Legislature as a source of law has precedent, which is also observed in become more important than case law Malaysia, the decisions of the higher or precedents as it is being increasingly courts must be followed by the lower used as a means of repealing, courts in similar cases. amending, enacting or codifying the law. - Judicial precedent is a judgment or 6. Subsidiary legislation decision of a court cited as an authority - Any proclamation, rule, regulation, for the legal principles embodied in its order, notification, by-law or other decision. instrument made under any Ordinance, - In the case of a binding precedent, each Enactment or other lawful authority and court is bound by the decisions of courts having legislative effect. of the same level or higher than it in the - Also known as subordinate/delegated same hierarchy of courts. legislation. 5. Customs - They are rules and regulations enacted - Refers to the customs of the local by an authority under powers conferred inhabitants which have been accepted on it by statute. as law. - Very important as legislation by - Mainly relates to family matters, e.g. Parliament and the State legislatures is marriage, divorce and inheritance. insufficient to provide the laws required - In Sabah & Sarawak, native customary to govern everyday matters. laws apply in land dealings over native - Deals with the details about which the customary lands and family matters legislature has neither the time nor the where natives subject themselves to technical knowledge to enact laws. native customary laws. - In Peninsular Msia, 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 1. Applicable to the natives of Sabah and the Syariah Courts. Sarawak only. 2. The power to administer Islamic law is 2. Natives are the indigenous people of these primarily of the States (except for the two States and the legal definition of federal territories). Native is found in the Federal Constitution 3. The Syariah Court is a state court and State Law.

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established by state law whereas the 3. There is a hierarchy of Native Courts in ordinary civil courts are federal courts. both States exercising jurisdiction over natives in respect of their personal laws 4. The religious courts possess civil such as breach of native customs, religion jurisdiction in proceedings between parties and matrimonial matters. who are Muslims and limited criminal jurisdiction over offences by Muslims only. 5. Does not apply to non-Muslims.

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. Federal Court Superio r Courts High Court (Malaya) Syariah Court Court of Appeal

High Court (Sabah & Sarawak) Syariah Court Native Court

Subordinat e Courts

Court for Childre n

Sessions Court

Sessions Court

Magistrates Court

Magistrates Court Small Claims Court

Court for Childre n

Small Claims Court

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Penghulus Court

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Penghulus Courts 1. Sec. 94 97 SCA48 2. 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 Penghulus Court may elect to be tried by a Magistrates Court. 8. If the order made by a Penghulus 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 SCA48
- Deals with minor civil and criminal cases. - Presided by a Magistrate. - Divided into First Class and Second Class Magistrates. First Class Magistrates Second Class Magistrates

1. Legally qualified and possesses greater 1. Not normally appointed.

2. Criminal jurisdiction: powers. - Possesses jurisdiction to try all offences 2. Criminal jurisdiction: for which the maximum term of - Possesses jurisdiction to try all offences punishment does not exceed 12 months for which the maximum term of imprisonment, or all offences punishable punishment does not exceed 10 years with fine only. imprisonment, or all offences punishable Where a person found guilty, Magistrate with fine only and offences under sec. may pass any sentence not exceeding: 392 (robbery) and 457 (lurking, housea. 6 months imprisonment; trespass, house-breaking at night) of the b. RM1,000 fine; or Penal Code. c. A combination of any of the above. - In Peninsular Msia, Magistrate shall 3. Civil jurisdiction: have jurisdiction to hear and determine Possesses jurisdiction to try original criminal appeals from Penghulus Court. actions or suits of a civil nature where - Magistrate may pass any sentence not the plaintiff seeks to recover a debt or exceeding: liquidated demand on money payable by a. 5 years imprisonment; the defendant, with or without interest, b. RM10,000 fine; not exceeding RM3,000. c.Up to 12 strokes whipping; or d. A combination of any of the above. 3. Civil jurisdiction: - Possesses jurisdiction to try all actions and suits where the subject matter does

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not exceed RM25,000 in value.

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Sessions Courts 1. 2. 3. 4. Sec. 63 69 SCA48. The highest of the subordinate courts. Presided by Sessions Court judge. 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. 3. Every proceeding shall be heard and disposed of by 3 judges or such greater uneven

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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 courts 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. 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

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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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