Chapter 1: Understanding The Malaysian Judicial System PDF

ENV. REGULATIONS AND MANAGEMENT (BNA 30503) CHAP TER 1: UNDERSTANDING THE MALAYSIAN JUDICIAL SYSTEM TS. DR. ROSLINDA BINTI ALI FACULTY OF ENGINEERING TECHNOLOGY DEFINITION & CONCEP T:...

ENV. REGULATIONS AND MANAGEMENT (BNA 30503) CHAP TER 1: UNDERSTANDING THE MALAYSIAN JUDICIAL SYSTEM TS. DR. ROSLINDA BINTI ALI FACULTY OF ENGINEERING TECHNOLOGY DEFINITION & CONCEP T: LAW – The procedures and the rules of conduct or act in which one uses one’s every sense in order to harmonise the convenience of oneself or another. LEGAL SYSTEM – refers to the framework of rules and institutions within a nation regulation individual’s relations with one another and between them and the government. A legal system includes a set of laws and the manners in which the laws are interpreted and enforced. DRA T YPES OF LEGAL SYSTEM: Civil law ✓ A set of a comprehensive system of rules which are applied and interpreted by judges. ✓ Originated from the Roman Law ✓ Civil law is older, more widely distributed and in many ways more influential than the common law. ✓ Practiced in most of Europe, all of the Central and South America, and parts of Asia and Africa. DRA T YPES OF LEGAL SYSTEM: Common law ✓ A system of law that is derived from judges’ decisions, rather than statutes or constitutions. ✓ Common law is based on tradition, past practices and legal precedents set by the court through interpretation of statutes, legal legislation and past rulings. ✓ It is English origin and is found in the United States and other countries with strong English influences. DRA T YPES OF LEGAL SYSTEM: Customary law ✓ A traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade and is treated as a legal requirement. ✓ In the world today, not many countries operate under a legal system which could be wholly customary. ✓ However, in many countries of political entities with mixed legal systems, customary law still plays an important role, e.g. in matters of personal conduct. DRA T YPES OF LEGAL SYSTEM: Islamic law ✓ Derived from the interpretation of the Quran. ✓ Its primary objective is social justice, but also includes property rights, economic decision-making, and types of economic freedom. ✓ Islamic law is mostly found in Pakistan, Iran, and other Islamic states. DRA T YPES OF LEGAL SYSTEM: Socialist law ✓ Based on fundamental tenets of the Marxist-socialist state and centers on the concept of economic, political, and social policies of the state. ✓ It can be found in some independent states of the former Soviet Union, China and other Marxist-socialist states. DRA  One political unit but not governed by the same law 1 Federal Constitution & 13 State Constitutions 13 states & 3 federal territories DRA LAW IN MALAYSIA WHY ?? The government system in Malaysia is based on the British Westminster Model (United Kingdom) – a constitutional monarchy and a parliamentary democracy. ✓ Election once every five years ✓ Adult citizens choose who should govern them ✓ The Cabinet should come from the majority party in the Parliament and must step down on a vote of no-confidence by the lower House of Parliament. DRA LAW IN MALAYSIA The legal system in Malaysia is an integration of a mixed legal system, which includes: ✓ Common Law Why is there a need to integrate a ✓ Islamic Law mixture of legal systems to be practised in Malaysia? ✓ Customary Law The Malaysian legal system in Malaysia is classified into: i) Written law Indicate the differences between ii) Unwritten Law. Written and Unwritten Laws DRA WRIT TEN LAW: The most important source of law Documented legal provisions enacted by the legislature, approved by the highest authority, and informed of its existence and its enforcement to the public Refers to that portion of Malaysian law which includes: ✓ The Federal and State Constitution ✓ Legislation enacted by the Parliament and State Assemblies ✓ Subsidiary legislation DRA WRIT TEN LAW: Power to enact the law: 1) Federal government ✓ Enacted Federal Laws ✓ Legislature: Parliament ✓ Laws enacted by Parliament: Acts ✓ The federal government legislated matters in the Federal Lists and Concurrent Lists Examples ?? DRA WRIT TEN LAW: Power to enact the law: 2) State government ✓ Enacted State Laws ✓ Legislature: State Legislative Assembly (DUN) ✓ Laws enacted by DUN: Enactments (For Peninsular Malaysia, except for KL) and Ordinance (Sabah & Sarawak) ✓ The state government legislated matters in the State Lists and Concurrent Lists Examples ?? DRA WRIT TEN LAW: Power to enact the law: 3) Special bodies ✓ The parties authorised to make the law, e.g.: Ministries, Local Authorities, Statutory Bodies ✓ Laws enacted are called Bylaws ✓ Bylaws can be in terms of Rules, Orders, and Regulations Examples ?? DRA  H O W I S T H E PO W ER T O M A K E L AW S DI V ID E D B ET W EE N T H E P AR L IA ME NT AN D T H E L E GI S L AT IV E A S S E M B L IE S ? The Constitution has three lists: ✓ Federal List – set out matters that only Parliament can make laws on. ✓ State List – set out matters that only legislative assemblies can make laws on Examples ?? ✓ Concurrent List - set out matters which Parliament and legislative assemblies can make law on How can both the Parliament and Legislative Assemblies make laws on the same matters in the Concurrent List? DRA UNWRIT TEN LAW: Unwritten law doesn’t mean that it is not written What made it unwritten is that it was not made by the formal legislative bodies. In other words, it refers to the law that has not been formally enacted. It is found in cases decided by the courts, local customs, etc. DRA UNWRIT TEN LAW (COMMON LAW): It is purely decisions of the courts, in which judgements are given on real cases by judges. The British introduced this set of laws to various treaties with local rules followed by legislation and decisions by English judges or judges in English legal system Almost all ex-British colonies have adopted the common law system. But in every country, the courts develop their own common laws which may not be identical to the English common law. DRA UNWRIT TEN LAW (CUSTOMARY LAW): Before the British arrived, the pre-existing law comprised of the Malay adat and the customary laws of various communities. Other pre-existing customary law include: ✓ Aboriginal customary law ✓ Chinese customary law ✓ Hindu customary law ✓ Native customary law of the non-Malay indigenous communities of Sabah and Sarawak DRA UNWRIT TEN LAW (CUSTOMARY LAW): Today, most of the customary laws in Malaysia are in decline. Only Adat Pepatih of the Malay adat law is practised in Negeri Sembilan. In Peninsular Malaysia: For the non-Muslims: Law Reform (Marriage & Divorce) Act 1976 (Act 164) For the Muslims: Islamic Law. In Sabah and Sarawak, The customary law applicable to non-Muslim communities remains vibrant. DRA U NW R IT T EN L AW ( IS L AM IC L AW ) : The Islamic law applied in Malaysia is of the Shafii school of jurisprudence, as modified by the Malay adat customary law. After the British era, it continues to grow in importance due to: ✓ Islamic resurgence in Malaysia; and ✓ Government policy of absorbing Islamic values in administration, e.g., Islamic banking, Islamic insurance. Elaborate on the Islamic Law practised in Malaysia DRA DRA