MALYSIAN LEGAL SYSTEM

NATURE OF LAW

Laws resemble morality because they are designed to control or

alter our behavior. But unlike rules of morality, laws are enforced by
the courts; if you break a law -- whether you like that law or not -you may be forced to pay a fine, pay damages, or go to prison.

In the Oxford dictionary, law is defined as body of enacted or

customary rules recognized by a community as binding.

Sir John Salmond in his book, Jurisprudence, defines law as the

body of principles recognized and applied by the state in the
administration of justice.

In short, law may be defined as a body of rules which are enforced

by the state.

CLASSIFICATION OF LAW

i) Public

Law

Public law deals with matters that affect society as a

whole.

It includes areas of the law that are known as criminal,

constitutional and administrative law.

These are the laws that deal with the relationship between
the individual and the state

CLASSIFICATION OF LAW
Private Law

ii)

Private law, on the other hand, deals with the

relationships between individuals in society and is used
primarily to settle private disputes.. Private suits are
also called "civil" suits.

Contract, Tort, Trust, ..

CLASSIFICATION OF LAW

International Law

International laws are prevail between states.

International law is defined as the body of law which is composed

for greater part of the principles and rules of conduct with the
states feel themselves bound to observe and consequently
commonly do observe in their relationship with each other.

Public International Law

Private International Law (Conflict of Laws)

SOURCES OF MALAYSIAN LAW

The term Sources of Malaysian Law means the

legal sources, i.e. the legal rules that make up the
laws in Malaysia.

Malaysian law can be classified into written law

and unwritten law.

THE WRITTEN LAW

Written law is the most important source of law. It refers

to that portion of Malaysia law which includes the
following:

i) The Federal Constitution

ii) Legislation
iii) Subsidiary Legislation

I) FEDERAL CONSTITUTION

Malaysia is a Federation of thirteen States with a

written constitution, the Federal Constitution,
which is the supreme law of the country.

The rights that written into the constitution can

only be changed by a two-third majority of the
total number of members of the legislature

II) LEGISLATION

Legislation refers to law enacted by a body constituted

for this purpose.

In Malaysia , laws are legislated by parliament at Federal

level and by the various State legislative Assemblies at
state level.

Laws that are enacted by Parliament are called Acts.

Parliament and the State Legislatures are not supreme.
They have to enact laws subject to the provisions set out
in the Federal and State Constitutions.

III) SUBSIDIARY LEGISLATION

The Interpretation Act 1967, defines subsidiary legislation

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

Subsidiary legislation is very important as legislation by

Parliament and state legislation is insufficient to provide
the laws required to govern everyday matters.

Subsidiary legislation enacted by Yang di-Pertuan Agong,

Ministers and local authorities, among others.

UNWRITTEN LAW

Unwritten law is simply that portion of Malaysian laws which is

not written , i.e. law which is not being enacted by parliament etc
and which is not found in the written Federal & State
Constitutions.

Unwritten law is found in cases decided by courts, local customs,

etc.
The unwritten law comprises the following :

i) Principle of English Law applicapable to local circumstances

ii) Judicial Decisions of the superior courts
iii) Customs of local inhabitants

I) ENGLISH LAW

English Law forms part of the laws of Malaysia.

English Law can be found in the English common law &

rules of equity.

The application of law of England throughout Malaysia is

subject to two limitations:
i) it is applied only in the absence of local statutes on the
particular subjects.
ii) only that part of the English law that is suited to local
circumstances will be applied

II) JUDICIAL DECISIONS

Malaysian law can be found in the judicial decisions of the

High court, Court of Appeal and Federal Court .

Judges do not decide cases arbitrary. They follow certain

accepted principles commonly known as precedents.

Precedents are basically decisions made by judges previously

in similar situations.
Example: if the supreme court made a decision in 1987 and
assuming the facts before a High court judge deciding a case in
1990 are similar to the said Supreme Court case, the High
Court judge must decide the case before him by applying the
principles laid down by the Supreme Court in 1987.

III)CUSTOMS

Customs of local inhabitants which have been accepted

as law by the courts in Malaysia are also a source of law.

Generally customs relating to family law i.e. marriage,

divorce and inheritance are given legal force by the
courts in Malaysia.

MALAYSIAN JUDICIAL STRUCTURE

The federal constitution provides that power is exercised by

the Legislative, the executive and the judiciary.
The judiciary has the power to hear and determine civil &
criminal matters.

The judicial power of Malaysia is vested in the Federal Court,

the Court of Appeal, the High Court and subordinate Courts.
The court system illustrated as fellow :

Superior courts : High Court, Court of Appeal, Federal Court

Subordinate Courts: Magistrate Court, Sessions Courts

SUBORDINATE COURTS
i) Magistrate Court :
The Magistrates Court deals with minor civil and criminal
cases. There are two categories of magistrates
-first class magistrates
-second class magistrates.
Civil Matters
1st Class magistrate:-amount in dispute or value of subjectmatter does not exceed 25,000 ringgit.
A 2nd class magistrate can only try actions concerning
recovery of a debt or liquidated demand on money not
exceeding 3,000 ringgit.

SUBORDINATE COURTS

Criminal Matters :

A first class magistrate can try offences:

(i) punishable by fine only
(ii) punishable by imprisonment not exceeding 10 years
(iii) involving robbery, lurking, house-trespass or house
breaking at night.

A second class magistrate can try offences:

(i) punishable by fine only, or
(ii) punishable by imprisonment not exceeding 1 Year

SUBORDINATE COURTS

ii) Sessions Courts :

The Sessions Court is the highest subordinate court and is

under the charge of a Sessions Court judge.
In Civil matters, the Sessions Court is empowered to deal
with all claims up to the value of RM1,000,000.
It also has unlimited jurisdiction to hear matters involving
accidents, landlord and tenant and distress proceedings.
In criminal matters, it can try all offences except those
punishable by death (e.g. murder, arson, kidnapping or
drug trafficking).

SUPERIOR COURTS
i) High Court :
There are two High Courts the High Court of Malaya and
the High Court of Sabah and Sarawak, each with a
Chief Judge. The jurisdiction of the High Court is
original, appellate and supervisory.
In the exercise of its original jurisdiction, it has unlimited
criminal and civil powers.
Any civil matter which cannot be determined in the
subordinate courts is heard before the High Court.
In criminal matters, a preliminary hearing must be held in
a Magistrates Court.

SUPERIOR COURTS
In the exercise of its appellate jurisdiction, it has
civil and criminal appeals from the Magistrates
and Sessions Courts.
In the exercise of its Supervisory jurisdiction, it
has jurisdiction over all subordinate courts. When
it desirable, the High Court may call for the records
of any proceedings in the subordinate courts,
whether civil or criminal, at any stage of such
proceedings.

SUPERIOR COURTS
ii) Court of Appeal :

The Court of Appeal is headed by the President of the Court

of Appeal.
On civil matters, it has jurisdiction to hear and determine any
appeal for cases where the amount or value of the subjectmatter of the claim is not less than 1000,000 ringgit.
On criminal matters, it has jurisdiction to hear and determine
any appeal against any High Court decision

SUPERIOR COURTS
iii) Federal Court :

The Federal Court is the highest court in Malaysia.

It consists of the Chief Justice, the President of the Court

of Appeal, the Chief Judge of Malaya and the Chief Judge
of Sabah and Sarawak, and six Federal Court Judges.

It can disputes on any matter between any state and

the federal government.

To hear civil & criminal appeals from the Court of

Appeal.

SPECIAL COURTS

Young offenders Courts :

The Malaysia Child Act 2001, a consolidation of three previous

laws on issues relating to child protection and juvenile justice,
namely the Juvenile Courts Act 1947, Women and Young Girls
Protection Act 1973 and Child Protection Act 1991.

Abuse, neglect, abandonment or exposing a child to physical

and/or emotional injuries is punishable under this law. The Law
also established the National Council for the Protection of
Children which advises the Minister on child protection issues.

Majority Act 1971

SPECIAL COURTS
The Industrial Court :
The Industrial Court is established under the Industrial Relations Act 1967, and
deals primarily with trade disputes.

It consists of a President appointed by the Yang di-Pertuan and a panel of persons

appointed by the Minister of Law.
This panel consists of a group representing employers and a group representing
workmen. In hearing any trade dispute, the court to be constituted necessarily consists
of the President and two members drawn from the panel one from each group.

LIABILITY UNDER THE LAW

Liability (by definition) is legal responsibility, the counterpart to

legal right.

In other words, legal liability describes a situation where a

person is legally responsible for a breach of an obligation
imposed by law.

The liability may arise due to operation of civil or criminal law.

The following are the liabilities:

i) Contractual liabilityii) Tortuous liabilityiii) Criminal liability-

LIABILITY UNDER THE LAW

i) Contractual Liability-

This liability arises when there is a breach of a legally

enforceable agreement entered into by two or
persons/parties.

Contractual liability can even be inform of products

liability (which means injuries to consumers and others
caused by defective products/goods).

LIABILITY UNDER THE LAW

ii) Tortuous Liability-

It is concerned with the breach of a duty imposed by

the law e.g. a breach of duty of care owed by one
person to another.

The law of tort seeks to compensate the victims of

certain forms of harmful conduct by an award of
damage or an injunction which prevents the same
harm from reoccurring.

LIABILITY UNDER THE LAW

iii) Criminal Liability-

It is a liability which arises as a result of committing a

criminal act by an individual.

It is important to note that a crime is an offence against

the state. Hence, criminal law is distinctive for the
uniquely serious potential consequences of failure to
abide by its rules.
Physical or corporal punishment may be imposed such
as whipping or caning, although these punishments are
prohibited some parts of the world.