1

MALAYSIAN LEGAL SYSTEM

A161 GLUP 1013
NOR AZLINA MOHD NOOR
norazlyna@uum.edu.my
 2

Topic 7:
Legal Profesion & Legal Education
 3

The professional lawyer requires a sufficiently general and broad
based education to enable him to adapt himself successfully to
new and different situations as his career develops; an adequate
knowledge
General of theeducation
aim of legal more important branches of the law and its
and training:
principles; the ability to handle facts, both analytically and
synthetically, and to apply the law to situation of fact; and the
capacity to work, not only with clients, but also with experts in
different disciplines. He must also acquire the professional skill and

techniques which are essential to practice, and a grasp of the
ethos of the profession; he must also cultivate a critical approach
to existing law, an appreciation of its social consequences, and an
interest in, and positive attitude to appropriate development and
change. -- THE ORMROD REPORT

COMPONENTS OF LEGAL EDUCATION

AND TRAINING
 4

Legal education should aim to develop students

capacities in 5 key areas intellectual integrity
+ independent of mind, core knowledge,
contextual knowledge, legal values +
professional skills.
LORD CHANCELLORS ADVISORY COMMITTEE FOR
EDUCATION & CONDUCT (ACLEC) IN 1996
 5
Aims of Legal Education

(a) Intellectual integrity and independence of mind

Requires a high degree of self motivation, an ability to think critically and to
undertake self directed learning to be reflective.
To be committed to truthfulness, be open to other viewpoints, be able to formulate
and evaluate alternative possibilities and to give comprehensible reasons for what
one is doing or saying.
These abilities and other transferable intellectual skills are usually developed by
degree-level education.
 6

b) Core knowledge
Proper knowledge of general principles, nature and development of law and of the
analytical and conceptual skills required by lawyers
These abilities are normally developed through a degree in law or the equivalent.

(c) Contextual knowledge

Involves an appreciation of the laws social, economic, political, philosophical, moral
and cultural context.
These appreciation may be acquired in part by the legal subjects in a law degree, or
by taking a non-law or mixed degree.
 7

d) Legal values
A commitment to the rule of law, to justice, fairness and high ethical standards, to
acquiring and improving professional skills, to represent clients without fear or favour
to promote equality of opportunity and to ensure that adequate legal services are
provided to those who cannot afford to pay.
These values are acquired not only throughout the legal educational process but also
over time through socialisation within the legal profession.

e) Professional skills
Learning to act like lawyer and involves a combination of knowing how to conduct
oneself in various practice settings and carrying out those forms of practice.
These skills are normally acquired through vocational courses and in-service training
i.e chambering process.
 8
Abilities and Transferable Skill as
Lawyer

As abilities not confined to the learning or application of a specific

subject
Should be seen as a language through which students are enable to
articulate aspects of their achievements in their law studies and beyond
which are appropriate both to legal practice and to other fields of
employment.
Not an optional extra matter to be studied
Important for students to recognise the skills they are developing and to
articulate their achievements.
Need to transfer skills to new context
 9
General transferable skills have been
identified as follows:
Communication

Intellectual skills Problem solving

Numeracy Teamwork

Information Autonomy and

technology personal skills
 10
Abilities and Transferable Skill as
Lawyer

1. Communication: the ability to present and communicate in

written and oral form and to use language appropriately in
complex argument.
2. Problem solving: the ability to identify and analyse
practical issues arising in a situation and to offer a practical
solution, making effective use of time and resources
available.
3. Teamwork: the ability to establish working relations with
others, to interact effectively and to promote productive
cooperation.
 11
Continue

4. Autonomy and Personal Skills: the ability to act independently,

to deal with the unexpected, to reflect on ones own actions and
to accept and provide constructive feedback.
5. Information Technology: The ability to use IT tools and develop
that use by integrating it into their own work.
6. Numeracy: the ability to make use of numerical and statistical
information as part of an argument or in a report.
7. Intellectual Skills: the ability to analyse, think critically, evaluate
and synthesise information.
 12

Judicial Service
LEGAL OFFICERS
 13
Superior Court Judges

The highest rank of court in Malaysia is Federal Court -headed by Chief Justice
Head of Malaysian Judiciary.- Chief Justice of Malaysia was previously
known as the Lord President of Supreme Court. Why it has been changed of
name?
Since 1963 to 1994, there were 7 Lord Presidents of the Supreme Court and 7
Chief Justices. Current Chief Justice?
Court of Appeal- President of Court of Appeal
High Court- a Chief Judge for both Malaya and Sabah & Sarawak
Article 122(1) Federal Constitution
 14
Judges of Federal Court, Court of
Appeal and High Courts

Judges are not public Servant- exception of service Article 132(3)(c) Federal
Constitution- stand similar as the post in Article 132(3) FC which includes Federal
Cabinet, State Executive Councils, members of Parliament and State Assemblymen
Judges is independent in a way that it is not subjected to another superior and that
he remains as a member of the judicial and legal service committee
His monthly remuneration is sourced from the Consolidated Fund of the country- shall
not be altered to his disadvantages.- Article 125(7) FC
May serve until the age of 66 years with a six months extension subject to the
permission from King
Legislative assembly of any state is banned from discussing the conduct of the
superior court judges- House of Parliament is allowed to do so but subject to certain
exception- Article 127 Federal Constitution.
 15
Judicial Appointment Commission Act
2009 (JACA 2009)

Appointment of the superior court judges is by the YDPA acting on the advice of the
Prime Minister or by the Chief Justice, after consultation with the Conference of
Rulers.
In 2009, the Judicial Appointment Commission was set up under JACA 2009 mainly
to assist the Prime Minister when advising the YDPA regarding the appointment of
superior court judges.
The Commission is empowered to do such other things as it deems fit to perform its
functions effectively or which are incidental to the performance of its function-s21
JACA.
Comprises of Chief Justice, President of the Court of Appeal, Chief Judges of the
High Courts, a Federal Court Judge to be appointed by the Prime Minister & 4
eminent persons (not a member of the executive or the public service)- appointed by
Prime Minister after consulting the Bar Council of Malaysia, Sabah Law Association,
the Advocates Association of Sarawak, the Attorney General s5 JACA 2009
 16
Functions and powers of the
Commission

Section 21 (1) JACA The functions of the Commission are

(a) to select suitably qualified persons who merit appointment as judges of the superior
court for the Prime Ministers consideration;
(b) to receive applications from qualified persons for the selection of judges to the superior
court;
(c) to formulate and implement mechanisms for the selection and appointment of judges of
the superior court;
(d) to review and recommend programmes to the Prime Minister to improve the
administration of justice;
(e) to make other recommendations about the judiciary; and
(f) to do such other things as it deems fit to enable it to perform its functions effectively or
which are incidental to the performance of its functions under this Act.
 17

A superior court judge cannot be removed from his position unless the Prime
Minister or Chief Justice after consulting the Prime Minister represents to the
YDPA that he should be removed due to breach of code of ethics (Article
125(3B) FC) or due to inability, from infirmity of body or mind or other cause
(Article 125(3) FC).
The representation will be referred to a tribunal that will be appointed by the
YDPA and that he may removed from his office based on the recommendation
of such tribunal- Article 125(4) FC
 18
Qualifications of judges of Federal Court,
Court of Appeal and High Courts

Article 123 Federal Constitution- A person is qualified for appointment under

Article 122b as or as a judge of any of the High Courts if
(a) he is a citizen; and
(b) for the ten years preceding his appointment he has been an advocate of those courts or
any of them or a member of the judicial and legal service of the Federation or of the legal
service of a State, or sometimes one and sometimes another.
 19

Section 23(2) JACA The Commission in selecting candidates shall take into
account amongst others, the following criteria:
(a) integrity, competency and experience;
(b) objective, impartial, fair and good moral character;
(c) decisiveness, ability to make timely judgments and good legal writing skills;
(d) industriousness and ability to manage cases well; and
(e) physical and mental health.
 20

A judge/judicial commissioner who has 3 or more pending judgements or

unwritten grounds of judgements overdue for more than 60 days must not be
selected-s23(3) JACA
A candidate who may provide diversity in the fields of legal expertise and
judicial knowledge will have greater chance to be selected by the Commission.-
s23(4)JACA
2009 Act is seen to have established a more standardised and systematic
process of selecting superior court judges.- also seen as another encroachment
of the executive into the judiciary as it empowers the Prime Minister to select or
remove members of the Commission and to decide on their allowances.
 21
Subordinate Court Judge

Members of public servant under the category of judicial and legal service-
Article 132(1) FC
Not independent. Subject o superiors due to the hierarchical nature in the public
service.
They do not retain their post as subordinate court judges, as there is a
possibility that they might be posed for a different posts under the Attorney
General Chambers.
Comprises of Session Court judges and the magistrates
Appointment is government by the Subordinate Court Act 1948
 22
Session Court

A Sessions Court judge is appointed by the YDPA on the recommendation of the

respective Chief Judges (section 59 of the Subordinate Courts Act 1948).
For the Federal Territory, magistrates are appointed by YDPA on the
recommendation of the Chief Judge.
In each of the States, magistrates are appointed by the State Authority on the
recommendation of the respective Chief Judges (section 78 of the Subordinate
Courts Act 1948).
 23
Magistrate Court

Magistrate Court

First Class Magistrates- s78 SCA Second Class Magistrate-s79 SCA

Appointed by State Authority with Appointed by State Authority

the recommendation of the Chief without the recommendation of the
Judge. Chief Judge.
 24

Legal Service
 25

Legal service

Attorney- Solicitor-
General General

Deputy Public Judicial

Prosecutor Service
Commission
 26
Attorney General

The attorney general is appointed by the Yang di-Pertuan Agong on the advice
of the Prime Minister, from any person qualified to be a Judge of the Federal
Court.
He may, but need not to be a member of the cabinet.
He holds office during the pleasure of the Yang di-Pertuan Agong.
The attorney general may resign at any time.
The Attorney General is the principal legal adviser to the Government. His role
and responsibilities are provided for in Article 145 of the Federal Constitution.
 27
Functions Of The Attorney General

Article 145 of the Federal Constitution

To advise the Yang di-Pertuan Agong, the Cabinet, or any Minister upon such legal
matters.
To perform as a legal character, as may be referred or assigned to him by these
persons.
Discharge such other functions as are conferred on him by the Constitution and other
written law.
Has the power ,exercisable at his discretion to institute, conduct or discontinue any
proceedings for an offence, other than proceedings before a Shariah Court, a
Native court or a Court-Martial.
Has the right of audience in and takes precedence over any other persons
appearing before any court or tribunal in the Federation.
 28

As a Public Prosecutor who has full power to commence and carry out
prosecution in criminal proceedings and assisted by members of his Chambers,
the Deputy Public Prosecutors.
The Attorney General also advises and represents the government in civil
matters, and may authorize a law officer ,the Legal Draftsman or a Federal
counsel to appear on his behalf as the advocate for the government in civil
proceedings by or against the government.
The Attorney General is under a duty to protect the public interest , as a
guardian, and represent the public interest in cases where it is threatened
under common law.
 29
The Solicitor General

Assists the Attorney General and is by law empowered to perform any of the
functions that can be performed by the Attorney General.
As a Deputy Public Prosecutor or as Public Prosecutor in the absence or
inability of the Attorney General to act.
Responsible for civil matters, interviews, intakes, transfers, postings and
promotions of officers and any other duties directed by the Attorney General.
To conduct prosecutions in the Session Courts and Magistrate Courts.
 30
Deputy Public Prosecutor

DPP may exercise all or any of the rights and power vested in or exercisable
by the Public Prosecutor- except the rights and powers which are to be
exercised by the Public Prosecutor personally.
Section 373(3) Criminal Procedure Code-
Section 373(3A) Criminal Procedure Code-
In PP v Dato Seri Anwar Ibrahim [2014] 1 CLJ 354
 31
Federal Counsel in Civil Matters

In Civil matters, s24(3) Government Proceeding Act 1956 (Revised 1988)

provides for
For example: in Civil Division of AGC, the Senior Federal Counsel and Federal
Counsel from this Division are engaged
to perform the roles and functions of the AG, namely represent the Government in all
civil proceedings, in matters of public interest,
To represent the AG in petitions for admissions asa advocates and solicitors pursuant
to LPA
to process applications for Special Admission Certificates and Certificates of Renewal
under Part IIA LPA
To represent the AG in cases concerning public, religious, social or charitable trust.
 32

Legal Aid
 33
Legal Aid

Both the Government and the Bar Council provide legal aid in Malaysia. The
provision of legal aid by the Government is through its Legal Aid Bureaus located in
all states while the Bar Council provides legal aid through its Legal Aid Centers in all
states in West Malaysia.

For the sake of clarity, whenever mention is made about the Legal Aid Bureau in
Malaysia, it must be borne in mind it refers to the Government funded Legal Aid
Bureau. Reference to the Legal Aid Centres refers to the Bar Council Legal Aid
Centres.

The Government legal aid is administered under the Legal Aid Act 1971 whereas
the Bar Council provides legal aid under the provisions of the Legal Profession Act
1976. The differences between the between the Government Legal Aid Bureaus and
the Bar Council Legal Aid Centers is set out below.
 34
Legal Aid Bureau

The Legal Aid Bureau was established in September 1970. It's primary
objective is to provide legal aid and advisory service to the indigent on legal
issues commonly associated with them.

The Legal Aid Bureau was contemplated way back in 1954, but the first
positive step was only taken in 1960. This was as a result of a letter written by
an 'orthopaedic almoner' of the General Hospital, Kuala Lumpur who requested
that free legal advice should be made available to patients suffering from
serious residual disabilities where compensation could be awarded if they are
given legal representation.
 35

Meanwhile certain women's organization also urged the Government to take

action to provide assistance to women and their children in their maintenance
claims against their husband and the children's guardian.

At that time, legal advice and assistance given were only confined to -
1. Government servants in cases of legal proceedings relating to their official duty
(vide the Public Officers (Conduct and Discipline) (General Orders Chapter D)
Regulations 1969)
2. Poor persons in 'forma pauperis' (vide the Rules of Supreme Court 1957)
3. Persons charged with criminal offences involving capital punishment (vide the
Criminal Procedure Code).
 36

In October 1969 the issue was referred to the Attorney - General and the then
Attorney - General supported the proposals. Subsequently it was referred to the
Ministry of Justice which later sought the advice of the Bar Council who also
supported the scheme.

A committee was formed to study the matter following which a pilot project was
launched in September 1970 providing legal aid relating to advice only. A sum of
RM100,000 was allocated for the purpose.

Due to the limited fund it was therefore found necessary to confine its jurisdiction to
certain specific proceedings. Priority was given to family matters since it was found
to be the bulk of the cases requiring immediate assistance such as maintenance
claim, enforcement of maintenance orders and etc.
 37

At the beginning, the Bureau was placed under the Attorney - General's
Chambers and following the setting up of the Ministry of Law in 1985 it was
placed under the Ministry until May 1995. It now comes under the wings of the
Legal Affairs Division of the Prime Minister's Department.

With effect from 16 January 2010, the name of the Legal Aid Bureau has been
changed to the Legal Aid Department.
 38
Function

Legal Aid Department was established in September 1970 and its primary
objective is to provide legal aid and advisory service to persons of limited
means.
Now, the functions of the Legal Aid Department are as follows:
1. To give legal advice on all legal matters (Fourth Schedule)
2. To represent or provide legal assistance in proceedings in all courts in Malaysia
within the jurisdiction as provided in the Second Schedule (criminal jurisdiction) and
the Third Schedule (civil jurisdiction) Legal Aid Act 1971
3. To provide mediation services
4. To promote legal awareness to the general public on their rights under the law.
 39
Power

Source of Power
1. Legal Aid Act 1971
2. Legal Aid Advice and Regulations 1970
3. Legal Aid (Mediation) Regulations 2006

Jurisdiction
1. Civil Jurisdiction (Third Schedule) | Legal Aid (Amendment Of Third Schedule) Order
2011
2. Syariah Jurisdiction (Third Schedule) | Legal Aid (Amendment Of Third Schedule) Order
2011
3. Criminal Jurisdiction
 40
Eligibility of The Applicant

First Category RM25,000 per annum (Registration Fee :

RM2.00 )

Second RM25,000 but less than RM30,000 per annum

Category (Registration Fee : RM2.00 + Contribution : RM
300.00)

Procedure for Legal Aid
Applicant to register
Means test conducted
Applicant to pay RM2.00 as
registration fee and
a receipt be issued if applicant
qualifies for legal aid and the
subject of dispute falls within
jurisdiction
41
False information of monthly
income/others, liable under s. Brief opened and registered
31- fined max RM1,000 or
imprisoned max 6 months
A statutory declaration form to
be executed by the applicant Brief processed
before a Commissioner for
Oaths.
Detail interview recorded to
identify issues, remedies and
needs of applicant
Applicant to fill all the relevant
legal aid forms
 42
Discharge and Revocation of Certificate-
Cancellation of Certificate

Under section 19 of the Legal Aid Act 1971 the Director General of Legal Aid or
any person appointed under subsection 3(2) may cancel a legal aid certificate.

According to regulation 8 of the Legal Aid and Advice Regulations 1970, a legal
aid certificate may be revoked in any of the following circumstances:
1. at the request of the person to whom it is issued;
2. the applicant has been required to make a contribution and any payment in respect
thereof is more than 30 days in arrears;
3. if the Director General is satisfied that the proceedings have been disposed of;
4. where the Director General is satisfied that the aided person has required the proceeding
to be conducted unreasonably so as to incur an unjustifiable expense to the Department;
 43

5. if the aided person has died;

6. if the aided person has had a receiving order made against him;
7. if the income of the aided person exceeds RM30,000.00 per annum upon further
determination;
8. if as a result of any information the Director General considers the aided person no
longer has reasonable grounds of being a party to the proceedings and it is
unreasonable for him to continue to receive legal aid;
9. if the aided person in furnishing information has knowingly made a false statement
or false representation.
 44
National Legal Aid Foundation
(NLAF)

The National Legal Aid Foundation (NLAF) was incorporated on 25 January

2011 as a result of a decision made at a Cabinet meeting on 3 March 2010.
The suggestion of setting up the NLAF arose during a meeting between the
Prime Minister and the Chairman and other members of the Bar Council
Malaysia, which took place on 7 Jan 2010.
During the meeting, the Prime Minister was informed that an estimated 80% of
those tried in court for criminal offences did not have legal representation.
 45

With the formation of the NLAF those who cannot afford legal fees will be provided
legal assistance by the NLAF. Lawyers who provide legal services through the NLAF
will receive only nominal payments since providing such assistance is part of their
social responsibility.
To set up the NLAF, a launching grant of RM5 million is needed from the
Government.
On the meeting held on 3 March 2010, the Cabinet agreed that the NLAF would be
formed under the Companies Commission of Malaysia. As a consequence of this, a
series of meetings involving the Attorney Generals Chambers (AGC), Legal Aid
Department (JBG), Legal Affairs Division (BHEUU) and the Malaysian Bar Council
were held to discuss the forming of the NLAF.
The proposal was finalised on 11 Oct 2010 at a meeting chaired by the Attorney
General of Malaysia.
 46

The NLAF is governed by a Board of Directors chaired by the Attorney

General.

Other members are the Bar Council President, Secretary General of Treasury,
the Director General of Legal Affairs Division, the Director General of Welfare
Department, the Director General of Legal Aid Department, President of the
Sabah Law Association, President of the Sarawak Advocates Association, a
Dean of the Faculty of Law in public learning institution and two representatives
from the non-governmental organisations to be appointed by the Minister.