Malaysian Legal System PDF

MALAYSIAN LEGAL SYSTEM Introduction to law  What is law?  What do you understand by the term ‘law’ ?  Example of law? INTRODUCTION TO LAW Definition of law  The word ‘law’ has been given many definitions by lawyers.  To the layman , law is understood as being a g...

MALAYSIAN LEGAL SYSTEM Introduction to law  What is law?  What do you understand by the term ‘law’ ?  Example of law? INTRODUCTION TO LAW Definition of law  The word ‘law’ has been given many definitions by lawyers.  To the layman , law is understood as being a general rule of conduct  In summary: law is a body of rules which are recognized and enforced by the state for the administration of justice to the people of a nation. INTRODUCTION TO LAW  Why do we need law? Functions of Law 1. Control social behaviour -this is done by a formal and rationalized set of rules that are enforced by a threat of punishment. -this will protect rights and deter wrongdoing in the society 2. Dispute resolution for contracting parties -when parties encounter conflict and fail to reach an agreement mutually, they may turn to law to settle their disputes. Functions of Law 3. Regulate peoples’ relationship -this function is performed by providing a set of rules of conduct by which relationships can be structured. -for example, the law of partnership enables individuals to organize their business relationships. Sources of law  What forms Malaysian law?  Where all these laws come from?  SOURCES OF MALAYSIAN LAW WRITTEN LAW UNWRITTEN LAW The Federal Constitution English Law The state constitutions Judicial Decision Legislation enacted by Customary Law Parliament and State Legislative Assemblies Subsidiary Legislation Islamic Law SOURCES OF MALAYSIAN LAW 1. WRITTEN LAW  Written law is the law being enacted by Parliament (federal level) and State Legislative Assemblies (state level).  The written law in Malaysia comprises: 1) The Federal Constitution 2) The state constitutions 3) Legislation enacted by Parliament and State Legislative assemblies 4) Subsidiary legislation 1. Federal Constitution  Federal constitution is the supreme law of the land – Article 4(1).  The federal Constitutions among others -establish the organs of the Federation that is legislative body, executive body and judicial body. -governs relationship between the Federation and its component states particularly on distribution of powers between federal and state government -provides the fundamental rights of individuals (eg. Freedom of speech, assembly and association) 2. State Constitutions  each state in Malaysia has its own constitution which contains provisions to regulate the state government  The State Constitution contains provisions among others on -matters concerning the Ruler -the Executive Council -the Legislature -the legislative assembly - State employees 3. Legislation  Legislation refers to laws enacted by legislative bodies.  In Malaysia, legislative bodies are Parliament and State Legislative Assemblies.  Laws are legislated by Parliament at federal level and by the various State Legislative Assemblies at state level.  Parliament- legislate law at federal level (Acts) -laws enacted by Parliament after 1957 are called Acts -laws enacted by Parliament after 1946 but before 1957 are called ordinances Legislation  Statelegislative assemblies- legislate law at state level -law made by State Legislative Assemblies (except in Sarawak) are called Enactments. -The laws in Sarawak are called ordinances 4.) Subsidiary legislation (delegated legislation  Subsidiary legislation refers to rules and regulations enacted by an authority under powers conferred on it by a statute (parent legislation)  Also referred to as delegated legislation, subordinate legislation, secondary legislation  Parent Act- the Act, Enactment or Ordinance that confers power to the relevant authority to make the subsidiary legislation.  The relevant authority then makes the subsidiary legislation (either in the form of Rules, Regulations, Orders, Notifications, By-law, etc) as stipulated by the Parents Act. Subsidiary legislation Example of subsidiary legislation 1. Parent Act- Employment Act 1955 -In Parent Act, the Parliament gives power to the Minister to make regulation. -the regulation made by the Minister that is the Employment (Termination and Lay-Off Benefits) Regulation 1980- is called subsidiary legislation. Subsidiary legislation Example of subsidiary legislation 2. Parent Act- Legal Profession Act 1976 -S.77 of the Legal Profession Act 1976 states that the Bar Council may, with the approval of the Attorney-General makes rules for regulating the professional practice, etiquette, conduct, and discipline of advocates and solicitors. -The Legal Profession (Practice and Etiquette) Rules 1978 was made. Subsidiary legislation Example of subsidiary legislation 3. Parent Act- Prevention and Control of Infectious Diseases Act 1988 (Act 342) -S.11(2) of the Act states that the Minister may, by regulations made under this Act, prescribe the measures to be taken to control or prevent the spread of any infectious disease within or from an infected local area. -The Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 was made. -control of movements is provided under regulation 3. Subsidiary legislation  Subsidiary legislation is very important as legislation by Parliament and State Legislatures is insufficient to provide the laws needed to govern everyday matters  Subsidiary legislation deals with the details about which legislature has neither the time nor the technical knowledge to enact laws  legislature merely lays down the basic and main laws, leaving the details to persons or bodies to whom they delegate their legislative powers. Such persons or bodies include the Yang di-Pertuan Agong, Ministers and local authorities. SOURCES OF MALAYSIAN LAW 2. Unwritten law  Law which is not enacted by either the Parliament or the State Assemblies. Neither are they found in the Federal or the State constitutions.  Unwritten law comprises the followings: 1) English Law 2) Judicial Decisions 3) Islamic law 4) Customary law English Law English Law forms part of the laws of Malaysia. English law can be found in the English common law and rules of equity. However, not all of English law applicable in Malaysia.  The application of English law in Malaysia is based on section 3 and 5 of the Civil Law Act English Law English Law Section 3 (1) Civil Law Act 1956 -in the absence of local legislation in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administered in England on the 7th of April, 1956. In Sabah and Sarawak, the courts are required to apply the English common law and rules of equity together with statutes of general application, as administered or in force in England on the 1st of December 1951 and the 12th of December 1949 respectively. English law  Proviso to section 3(1) ‘the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of states of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. English Law Based on the above provisions, in your opinion, what is the conditions for the application of English law in Malaysia? English Law  Therefore, the application of English law is subject to two limitations: 1. Absence of local law 2. Suitability to local circumstances English Commercial Law  The application of English Commercial Law in Malaysia is based on section 5 of the Civil Law Act 1956.  Section 5(1) of the Civil Law Act 1956 which provides as follows:  With respect to mercantile law in the states of West Malaysia other than the states of Penang and Malacca, the principles of English commercial law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act in the absence of local legislation.  So in West Malaysia, the principles of English commercial law to be applied is as it stood on the 7th April 1956 English Commercial Law  Section 5(2) on the other hand provides that  in the states of Penang, Malacca, Sabah and Sarawak, the law to be administered in the matters of commerce shall be the SAME as would be administered in England at the corresponding period unless local laws exist.  Thus in Penang, Malacca, Sabah & Sarawak, the law which is applicable in England at the same period in which the case is heard will apply but since we have many local statutes that relate to commercial law they will apply not English law.  Application of English Commercial Law  Kon Thean Soong v Tan Eng Nam 1 MLJ 323  The court in this case had held that the English Partnership law was NOT applicable in Malaysia since we already have the Contracts (Malay States) Ordinance to regulate the matter. 27 Application of English Commercial Law  Shaik Sahied b Abdullah Bajerai v Sockalingam Chettiar MLJ 81  Section 5 is silent on matters relating to suitability (of English commercial law) to local circumstances unlike section 3 of the Civil Law Act.  In the above case, the Privy Council held that the English Moneylenders’ Act was not applicable to the Straits Settlements.  So based on the above case it can be concluded that English Commercial law is still required to suit the local circumstances. 28 Judicial Decisions Malaysian law can also be found in the judicial decisions of the High Court, Court of Appeal and the Federal Court. Hierarchy of Malaysian Courts Judicial Precedent  Judicial decisions are based on the doctrine of binding judicial precedent What is precedent?  Precedents are basically decisions made by judges previously in similar situations. A judge must apply the principles laid down by judges previously in similar situations. Judicial Precedent General Rule of judicial precedent  Decision of higher courts bind lower courts and some courts are bound by their own decisions.  Types of judicial precedent 1. Declaratory Precedent 2. Original Precedent Types of Judicial Precedent 1. Declaratory precedent - a judge applies an existing rule of law without extending it 2. Original precedent -if the case before the judge is without precedent, then the decision has to be made based on justice, equity and good conscience. Islamic law  The application of Muslim law is limited to the Muslims pertaining to personal law matters only.  Personal laws refer to a body of principles that apply to a particular group only, be it based on race or religion. Which court enforce Islamic law? Islamic law  Islamic law is enforced by the Shariah courts  What is the jurisdiction of Shariah courts? Islamic law  Syariah courts posses civil & criminal jurisdiction  Examples of civil jurisdiction of Syariah courts -betrothal, marriage, divorce, nullity of marriage, guardianship or custody of infants  Examples of criminal jurisdiction -matrimonial offences, offences relating to sex, offences relating to intoxicating liqour Islamic law  What punishment can be imposed by the Syariah court? Islamic law  The maximum punishment can be imposed by Syariah courts is -imprisonment up to 3 years or - fine up to RM5000 or - Whipping up to six strokes or - Combination of all these Customary law  Customary law can be found in the customs of the local inhabitants -customs of the local inhabitants in Malaysia are also a source of law. Only custom which is recognized and enforced by the courts is accepted as one of the sources of law -generally, customs relating to family law (marriage, divorce, inheritance) are given legal force by the court in Malaysia. Customary law  Application of customary law in west Malaysia  In west Malaysia, adat applies to Malays. Prior to the enforcement of Law reform (Marriage and Divorce ) Act 1976, Hindu and Chinese Customary law applied to the Hindus and Chinese respectively. - In west Malaysia, Malay customs still have legal consequences - However they are limited to a narrow field on matters pertaining to inheritance, marriage and divorce. - The Malay customary law can be divided into adat perpatih and adat temenggong. Customary law  Canyou differentiate between adat perpatih and adat temenggong?  What are the main differences? Customary law  Adat perpatih - based on matrilineal system. Ancestral property is only be inherited by the female descendants of the deceased holder - It deals with land tenure, lineage and election of Lembaga, Undang and the Yang di-Pertuan Besar. - Broadly applied by the Malays in Negeri Sembilan and Naning in Malacca  Adat temenggong -is based on patrilineal system which is practised in the rest of the states in Malaysia.  Customary law  In west Malaysia, Chinese and Indian customs have become less important after the enforcement of the Law Reform (Marriage and Divorce) Act 1976 -this Act takes effect on 1 March 1982 -as far as Chinese and Indians are concerned , after the enforcement of the Act, polygamous marriage were abolished. -since then Chinese and Hindu Customs have become of little or no effect as a source of law in Malaysia. Customary law  Application of customary law in East Malaysia -in East Malaysia customary law can be divided into Malay customary law, native customary law and Chinese customary law. Customary law 1. Malay customary law- applicable to Malay only and is enforced by the Syariah court 2. Native customary law- applicable to non-malay natives and is enforced by the native court 3. Chinese customary law- applicable to Chinese in Sarawak only and is enforced by the civil court