EBM3113

MALAYSIAN LEGAL SYSTEM

Civil law system Common law system Sino-Soviet system Islamic legal system

Hindu legal system

Talmudic legal system

Common law is derived from case law (or precedent) and statute. It is accusatorial in form with an emphasis on remedies. It forms the basis of English law and can be found in the United States, as well as Commonwealth nations including Australia and Canada, Singapore, Malaysia, New Zealand, parts of Africa, India and Pakistan.

This system is based on the philosophy of Karl Marx (that is, the eradication of capitalism and the elimination of private ownership). Its emphasis on codes makes it more like a mere variant of civil law albeit with an emphasis on public law.

The Islamic legal system is derived from the Koran. It coexists with other laws.

The Hindu legal system is based on the doctrine of proper behaviour. Hindu law is followed by Hindus.

The Talmudic legal system is derived from the Old Testament of the Holy Bible. It is the law of the Jews.

 Around 1400 A.D., the development of the Malacca Sultanate was an early landmark in the development of the legal system and the administration of justice. As Islam became the state religion in Malacca, Islamic law together with Malay customary law was administered in the Sultanate. The Malacca Sultanate ended when Malacca came under the occupation of the Portuguese from 1511 to 1643, and then by the Dutch from then until 1795. Under the Portuguese and the Dutch, magistrates were appointed to settle civil disputes and try criminal cases. Although Portuguese and Dutch laws were applied generally, in the cases involving the local people, Muslim law and Malay customs continued to be applied.

 In traditional Malay society, there was no distinct separation of powers as is practised today between the judges and executive. The Rulers and their chiefs were responsible for maintaining social unity, law and order. Chinese and Indian were allowed to follow their own customs in succession and family matters. Under the control of the British Colonial Office between 1786 and 1957 that the judiciary became separate from the executive. It was the beginning of the current legal system of Malaysia. Malaysian Legal System is composed of English Law, Islamic Law and Customary Law.

 Section 3 of Civil Law Act 1956 provided that the Courts shall apply U.K common law, rules of equity and certain statutes in Malaysia. Section 5 of Civil law Act 1956 provided that the Courts shall apply English Law in commercial matters in Malaysia.

The Constitution vests power in three distinct and independent branches: the executive, legislative and judicial branches. Basically, the legislative branch is granted the power to make the law, the executive branch to enforce the law and the judicial branch to interpret the law. The separation of power operates as checks and balances on the power of the branches sharing them.

Executive Enforce the Law

Appoints Federal judges

Judicial Review

Veto Confirms appointments power

Judicial Review

Judicial Interprets the Law

Confirms appointments

Legislative Makes the Law

Jurisdiction means the power or authority of a court to hear and decide a given case. To resolve a lawsuit, a court must have two kinds of jurisdiction. The first is subject matter jurisdiction. The second kind of jurisdiction is over the parties to a lawsuit.

Authority of a court to decide a particular kind of case. Jurisdiction of Federal Courts Jurisdiction of Court of Appeal Jurisdiction of High Courts Jurisdiction of Subordinate Courts

The power of a court to bind the parties to a suit. In Personam jurisdiction Jurisdiction based upon claims against a person, in contrast to jurisdiction over the persons property. In Rem Jurisdiction Jurisdiction based on claims against property. Attachment Jurisdiction Jurisdiction over a defendants property to obtain payment of a claim not related to the property. Venue geographical area in which a lawsuit should be brought.

Parties

In rem

Personal

Attachment

Civil litigation in Malaysia and practice is governed

by: Subordinate Court Rules 1980 Rules of High Court 1980 Rules of Court of Appeal 1994 Rules of Federal Court 1995 The Court of Judicature Act 1964 The Civil Law Act 1965.

Common forms of civil litigation pertain to: commercial matters; hire purchase; matrimonial matters including divorce, custody and maintenance; administration of estate including granting of probate of wills letters of administration; bankruptcy; insurance; and other civil claims including recovery of payment for good sold and delivery.

In Malaysia criminal offences are codified under the Penal Code for various offences relating to: offences affecting the human body (murder, etc.); offences relating to properties; offences relating to documents, currency or banknotes; offences relating to criminal breaches of contracts of services; offences relating to marriage; offences relating to criminal conspiracy of abetment; offences relating to public servants. All offences under the Penal Code are inquired into and tried according to the provisions of the Criminal Procedure Code.