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CHAPTER ONE MALAYSIAN LEGAL SYSTEM

A. B. C.

INTRODUCTION TO LAW SOURCES OF MALAYSIAN LAW ADMINISTRATION OF JUSTICE

A. INTRODUCTION TO LAW 1.

WHAT IS LAW LAW:

“A rule of action to which men are obliged to make their conduct comfortable; a command, enforced by some sanction, to acts or forbearance of a class” Jowitt’s Dictionary of English Law

What is Law A set of rules to govern a human society

To maintain peace

harmony

in the society

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2.

LEGAL SYSTEMS A legal system: • The framework of rules and institution within a nation and regulating the individual’s relations with others and between them

and

the

government. Institutions: •

An integral part of a legal system.

Include parliaments, courts, prisons, administrative officers people generally involved in the law (lawyers, judges,

and

magistrates,

police, tax officers, public servants etc.) Malaysian Legal System:

3.

Unique flavour.

A blend of the East, the West and the Indigenous.

An ingenious system born of compromises of conflicting interests

TYPES OF LAW •

Justice systems are generally divided into two main areas: civil and criminal i. Civil law - encompasses all disputes between two or more private parties ii. Criminal law – encompasses …

Under the Malaysian legal systems • International vs Domestic

• • •

Public vs Private Criminal vs Civil Civil vs Islamic

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THE DIFFERENT TYPES OF LAWS •

Administrative law - Involves setting and enforcing rules and regulations by government agencies other than the Legislature.

Admiralty Law - Also known as Maritime Law. All countries have maritime laws and they are responsible for their vessels regardless of which ocean they are sailing in.

Aviation Law - Laws have been instituted by state and federal governments to enhance safety in air traffic. Aviation Laws in the United States govern aircraft operations and the maintenance of aircraft facilities.

Bankruptcy Law - When an individual or a company files for relief of debt, it is termed as Bankruptcy.

Civil Rights Law – The Federal Constitution which provides for individual rights include freedom from slavery, freedom to vote, freedom of assembly, freedom of the press, freedom of speech and the right to be treated fairly in public places.

Consumer Rights - Complaints about misleading advertising or business practices that are unlawful can be filed and that division investigates and mediates on behalf of the consumer.

Corporate Law - A corporation is a legal entity created through the laws of its state of incorporation.

Criminal Law - A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it.

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Employment Law - A broad area encompassing all areas of the employer/employee relationship except the negotiation process covered by labor law and collective bargaining.

Family Law - Deals with family-related issues and domestic relations including, but not limited to the nature of marriage, civil unions, and domestic partnerships; issues arising during marriage, the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders.

Immigration Law - determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship.

Intellectual Property - Patents, copyrights, trademarks and related interests are known as intellectual property (IP).

Industrial Relations Law - The goal of labor laws is to equalize the bargaining power between employers and employees. The laws primarily deal with the relationship between employers and unions.

Land Law – covers the issue of ownership, alienation and dealings of lands.

Military Law - Governs the military personnel only

Personal Injury Law - Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the 4


same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages. •

Product Liability Law - Refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain).

Taxation Law

Taxation includes local government, possibly including one or more of municipal, township, district and county governments as well as including state and federal government

Types of law International

Domestic

PRIVATE PUBLIC

Constitutional

Law of Obligation Criminal

Torts

Law of trust

Contract

Administrative

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B. SOURCES OF MALAYSIAN LAW 1. WRITTEN LAW • Federal Constitution – supreme law of the land & the 13

state

constitutions • Legislation enacted by the legislature (legislative bodies): •

Parliament – under powers conferred on them by the Federal Constitution

State Legislative Assemblies (SLA) – under powers conferred on them by the respective state constitutions

• Subsidiary or delegated legislation made by persons/bodies powers conferred on them by Acts of Parliament or

under

Enactments of SLA

• Extraordinary laws (Ordinances) can be made by YDPA

during a

period of emergency proclaimed – under Article 150 2. UNWRITTEN LAW • Refers to portion of Malaysian law which is not enacted by

the

legislature (Parliament/State Assemblies) • Comprises: a. Principles of English law applicable to local circumstances b. Judicial decisions of the superior courts (High Court, Court of Appeal & Federal Court – final appellate court) c. Judicial decisions of superseded superior courts (Supreme Court, the former Federal Court [acted as Court of Appeal] & Judicial Committee of the Privy Council – abolished in 1985) d. Customs of local inhabitants - accepted as law by the court 3.

ISLAMIC LAW • A major source of Malaysian law • Applicable only to Muslims • Administered by a separate system of Syariah courts at state levels & the Federal Territories 6


4. ENGLISH LAW • Express application – through S.3(1) of the Civil Law Act

1956:

West Malaysia – common law of England & rules of equity as at 7/4/1956

Sabah – common law of England & rules of equity together

with statutes

of general application as at 1/12/1951 •

Sarawak – common law of England & rules of equity statutes of general application as at

together

with

12/12/1949

• Implied application – when the court interpret an instruction cases according to “justice & right” – as implying

the

to

decide

reception

of

English law (interpretation of the Court of Judicature in Penang in Regina v Williams (1985) 3 Ky 16. • Conditional application – proviso to S.3(1):

“…shall be applied so far only as the circumstances of the states of Malaysia and their respective inhabitants permit & subject to such qualifications as local circumstances render necessary.” • English commercial law – S. 5(1) - if there is no written law – English law applicable as at the coming into force of the

Civil Law Act.

• BUT – for Penang, Malacca, Sabah & Sarawak – applicable

as

at

corresponding date. 5. JUDICIAL DECISIONS

• One of the few meaning of “common law” -non-statutory law evolved through judicial decisions

• Also referred to as judge-made law. • Although theoretically - laws are made by the legislatures & the duty are only to interpret laws – it is generally accepted that

judges

courts do

make law.

• Doctrine of Judicial Precedent: – Judges make laws in 2 ways:

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1. Applying an established rule or principle to a new

situation or a new

set of facts. - most frequently in areas where statutory laws made

very

little impact (e.g.: law of torts) 2. Interpreting statutes enacted by legislatures. - 2 respects of the authority of judges: a. Power to decide whether a particular statute is valid. b. Power to interpret them. - Judges interpret the meanings of words & apply them to the facts of particular cases. -

Judges do not decide arbitrarily. Judges are bound to follow certain accepted practice

commonly known as “precedent”. -

“Precedent” – a judgment or decision of a court of an authority for the legal principle

law cited as

embodied in its decision.

– Practice of following precedent – also known as “ stare

decisis” –

To decide which precedent is binding – the judge is influenced by 2 main factors:

1. The origin of the precedent • To be binding – a precedent must originate from a court of appropriate rank in the same hierarchy. 2. The content of the precedent • “Ratio decidendi” – the legal reasoning – binding. • “Obiter dictum” – Things said by judges by the way in making judgment – not binding but may have persuasive authority. •

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Types of law International

Domestic

PRIVATE PUBLIC

Constitutional

Law of Obligation Criminal

Torts

Law of trust

Contract

Administrative

C.

ADMINISTRATION OF JUSTICE

1. JUDICIAL POWER

As per Lord Griffith CJ in Huddart, Parker & Co. v Moorhead 91908-1909) 5 CLR 330 at 357:

“The power which every sovereign authority must of necessity have to decide controversies between its subject, subjects, whether the rights relate exercise of this power does power to give a

or between itself and its

to life, liberty or property. The

not begin until some tribunal which has

binding and authoritative decision (whether subject to

appeal or not) is called upon to take action.”

• Normally exercised by the courts. • But – the Constitution Amendment Act 1988: 

Article 121 was amended – judicial power may no longer rest exclusively with the courts. 9


Article 145 was added a new clause (3A) – allowing

the Attorney General to exercise certain “judicial power” struck down by the court. 2. JURISDICTION • Means – “the right to decide” – the sort of cases that may tried by the courts. • Many terms: 1. Original jurisdiction – when the court has the right to try cases at the first instance. 2. Appellate jurisdiction – when the court considers the case at second or more instance & only after another lower court has made a decision which is subject to appeal. 3. Inherent jurisdiction – power to hear and determine cases. 4. Judicial review jurisdiction – the power of the court to pronounce on the legality or otherwise of a statute. 5. Supervisory jurisdiction – power of the High Court to control the activities of the subordinate courts or tribunals.

• Amendment to Article 121 (1A): • The High Court no longer within the

has jurisdiction in respect of any matter

jurisdiction of Syariah

courts.

• Jurisdiction of Syariah courts is conferred by state law because matters relating to Islamic law – is a 3.

state matter under Article 74 (2).

Hierarchy of Malaysian Courts

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Hierarchy of Malaysian courts FEDERAL COURT COURT OF APPEAL HIGH COURT OF MALAYA

HIGH COURT OF SABAH & SARAWAK

SESSION COURT

SESSION COURT

MAGISTRATE COURT

MAGISTRATE COURT

PENGHULU COURT

NATIVE COURT

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Intro  

Intro Undang-Undang di Malaysia

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