Introduction to the Malaysian Legal System PDF

Introduction to the Malaysian Legal System What is Law? FAG1009 2  Law A body of rules or a general rule of conduct that is binding upon all citizens in a State. Law is for the guidance of human conduct. Transgression or breaking the rules will...

Introduction to the Malaysian Legal System What is Law? FAG1009 2  Law A body of rules or a general rule of conduct that is binding upon all citizens in a State. Law is for the guidance of human conduct. Transgression or breaking the rules will subject to punishment/repercussion i.e., imprisonment, fines, whipping etc. The purpose of punishment is to ensure obedience. The aim of law is to attain justice in society. Setting up procedure to resolve disputes. FAG1009 3 What is Morality? FAG1009 4  A set of standards to enable people live in a society. A society determines what is right and what is an acceptable conduct. The standards differ from one society to another. Custom and culture influence these standards. i.e., Western Culture, Eastern Culture etc. The moral standards may also change over time. Unlike law, violating the moral standards do not necessarily would subject to formal punishment. It may only result to social disapproval or moral condemnation. FAG1009 5  Common Morality Examples Be polite. Help the poor. Help the elderly. Help doing chores at home. Do not be arrogant and selfish. Do not lie. FAG1009 6  Morality Law Do not be Conducts which against both the Moral and the Legal Rules Parking offences, arrogant Transfer of such as: properties. 1. Murder Banking transactions. 2. Rape 3. Theft FAG1009 7  Malaysian Legal System: An Overview Malaysia is a federation of 13 states and 3 Federal Territories (a) The States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu; (b) The Borneo States, namely, Sabah and Sarawak and (c) The 3 Federal Territories are Kuala Lumpur, Putrajaya and Labuan. The Malaysian legal system is based on the common law and rules of equity in England as a result of the country’s long historical experiences which can be traced back to the period of Melaka Sultanate. FAG1009 8 Undang-Undang Melaka (Laws of Melaka) & Undang-Undang Laut Melaka (Maritime Laws of Melaka The earliest compilation of laws. Enforced during the period when the Malacca was the most important kingdom in the Southeast Asia in the 15th century. Laws of Melaka consisted of 44 Clauses which among others dealing with the maritime law, Muslim marriage law and Muslim law on sale and procedure. The laws were a combination of Malay customary laws which also have some Hindu laws’ influence and the Islamic laws. FAG1009 9  Colonial Period Historically, Malaysia was under 4 colonial powers: Portuguese Dutch British Japanese Only the British influenced the Malaysian Legal System by the introduction of common law during the British Administration. FAG1009 10 Sahrip v Mitchel and Endain (1877) Leic 466 Sir Benson Maxwell CJ: The Portuguese while they held Malacca and after them the Dutch, left the Malay custom or lex non scripta in force. That it was in force when this Settlements was ceded to the Crown appears to beyond dispute and the cession left the law unaltered is equally plain on general principles. FAG1009 11  The Introduction of English Law Common law was introduced to the Straits Settlements through various Royal Charters of Justice. But the first official introduction of English law to the country happened when King George III granted the Royal Charter of Justice that established a Court of Judicature to exercise the jurisdiction of the superior courts in England and introduced English law, as it stood in England on 25 March 1807 to Penang. Formal introduction of English Law in Borneo States: Sarawak in 1928 via Order L-4 (Laws of Sarawak Ordinance) 1928 Sabah in 1938 via Civil Law Ordinance 1938. FAG1009 12  Common law replaced the Malay-Muslim law as the basic law but Islamic Law still applies on family and religious matters involving Muslims. The Islamic law is administered by the Syariah Courts. Likewise, the customary laws remain applicable but in decline in certain aspects such as: Aboriginal customary law Chinese customary law Hindu customary law Malay customary law (Adat Perpatih in Negeri Sembilan) Native customary law of the non-Malay indigenous communities of Sabah and Sarawak (Administered by Native Courts). FAG1009 13 Definition of Law under the Federal Constitution Article 160 of the Federal Constitution defines the word “law” to mean: "Law" includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof FAG1009 14  Adversarial System Like other countries which practise the Common Law Legal System, the Malaysian Legal System is an Adversarial System. A system where two parties to a dispute present their cases before a trial judge. The trial judge conducts the trial proceeding and determines what evidence can be admissible. The trial judge must be an impartial umpire. The trial judge would listen the presentation of the two parties and at the end of the trial, decides the case. Previous decisions by higher courts are binding on lower courts. FAG1009 15  Inquisitorial System It is the opposite of Adversarial System. It is used by many countries in Europe i.e. France, Netherlands, Germany etc. A trial judge in the Inquisitorial System plays an active role in the trial. The trial judge determines the evidence or witnesses to be called. The trial judge who asks questions to the witnesses. Previous decisions are not binding and the trial judge is free to decide each case independently. FAG1009 16 Enough for the first class and hopefully you would not end up like those in this picture. See you in the next class!!! Thank You FAG1009 17