Malaysian Legal System PDF

CHAPTER 1 MALAYSIAN LEGAL SYSTEM LAW240 INTRODUCTION TO COMMERCIAL LAW At the end of the class, student will able to understand the topics as follows; What is LAW?  State A vs State State A vs Mr A Mr A vs Mr B B...

CHAPTER 1 MALAYSIAN LEGAL SYSTEM LAW240 INTRODUCTION TO COMMERCIAL LAW At the end of the class, student will able to understand the topics as follows; What is LAW?  State A vs State State A vs Mr A Mr A vs Mr B B  Public Law Public Law The law which governs the relationship between individuals and the State. Public law Criminal law Constitutional law  Public Law Constitution al Law Criminal Law Lays down the Codifies the rights of various offences individuals in the committed by State individuals e.g – rights of against the State citizen  International Law International Law  Body of law and rules of conduct which States are bound to observe. Public Internatio Private Internatio Internatio nal nal Law nal Law law  International Law Private International Public International Law Law consists of the rules that Law that prevails guide a judge when the laws between States of more than one country affect a case (conflict of laws). Mr B in Indonesi Mr A in Malaysia Vs Vs Indonesi a Malaysia a MoU Malaysia Treaty  Private Law  Civil Law  Law which affects the rights and duties of individuals amongst themselves  intended to give compensation to person injured, to enable property to be recovered from wrongdoers and to enforce obligation  Private Trust Law An equitable obligation binding a person (trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries) Tort Based on an Contract obligation Law imposed by law agreement that ie: negligence, have legal effect defamation, assault, trespass  SOURCES OF LAW Sources: = legal rules that make up the law in Malaysia. Historical Sources Religious beliefs, local customs and opinion of jurists. Places where the law can be found Statutes, law reports, previous decisions of the courts and text books. Sources of law  1. Federal Constitution Article 4- Federal Constitution is the supreme law of the land. comprising 13 states the Federation. All the articles/provisions in the State constitution, legislation and subsidiary legislation must be consistent with the Federal Constitution Laying down the powers of the Federal and State Governments (Federal List, State List, Concurrent List)  1. Federal Constitution Basic/fundamental rights of the individual. Drafted by Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. Come into force following the independence on August 31, 1957 AMMENDMEND This Constitution can only be amended by a two-thirds (2/3) majority of the total number of members of the Legislature. Federal Constitution  2. State Constitution Each State in the Federation is governed by its own constitution. There are some variations in the State Constitutions to cater for local peculiarities (habit) such as succession to the throne but the structure of government is largely similar.  2. State Constitution Provide State Legislative assembly to make law which is known as Enactment. State government headed by Menteri Besar (with Sultan) and Ketua Menteri (No Sultan) Article 75 of the Fed Cons- ‘If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void’. There are some variations in the State Constitutions to cater for local peculiarities (habit) such as succession to the throne but the structure of government is largely similar. Who make the ‘Written Law’ in Malaysia Federal List & State List Primary Legislation  9th Schedule of Federal Constitutio n Matters 2. Primary Legislation Parliament  Act State constitution  Enactment Discuss the meaning of each terms Statute/ Federal Act of Ordinan Constituti on Parliame ce nt Delegat ed/ Enactme Subsidia nt ry Legislati on Jangan stress  PARLIAMENT Primary Subsidiary/ Legislation delegated legislation Defined by the Interpretation Act Law enacted by a 1967 as ‘any body constituted for proclamation, rule, this purpose. parliame regulation, order, Parliament at nt notification, by-law federal level and by or other instrument the various State made under any Legislative Ordinance, Assemblies at state Enactment or other level lawful authority and having legislative effect’.  SUBSIDIARY LEGISLATION Delegated Legislation. = Rule and regulation made by an appointed authority under power conferred by Act of Parliament or State Enactment. Act of Parliament / State Enactment are insufficient to govern every matters  that is why we need Subsidiary Legislation  SUBSIDIARY LEGISLATION The process is faster than the procedure to make law either in the Parliament or State Assemblies. Subsidiary Legislations are made by experts in specific areas. Subsidiary legislation made in contravention of either parent Act or the Constitution is void.  SUBSIDIARY LEGISLATION..other reasons To economize time of discussion in parliament/state assembly Expertise in technical field flexible  Occupational safety and Health 1994 Occupational Health and Safety Regulation 2017 Akta Juruanalisis Makanan 2011 Peraturan-Peraturan Juruanalisis Makanan 2013 Food Act 1983  Food Regulation 1985 Control of Subsidiary Legislation  SUBSIDIARY LEGISLATION..example Rules and Regulation made by Majlis Perbandaran, UiTM, TNB, Pos Malaysia etc Known as Rule, Regulation, By law Must not in contravention with any Act or Enactment How to read the legislation? 1.2.3….Paragraph Rileks sekejap…!  UNWRITTEN LAW convenient reference to that portion of Malaysian law which is not enacted by the legislature (Parliament and the State Assemblies) and which is not found in the Constitutions, both Federal and State. Not Not written by any codified Act/Enactment  1. ENGLISH LAW 1. ENGLISH LAW Has been received in Msia and it is done either expressly or by implication. Section 3(1) of Civil Law Act 1956-Where the court is required to apply…… “(a) in West Msia or any part thereof…..the common law of England and the rules of equity as administered in England on the 7th of April 1956, (b) in Sabah….the common law of England and the rules of Equity, together with statutes of general application, as administered or in force in England on the 1st of December, 1951 and (c) in Sarawak…...the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12 th of December, 1949”. The application of English Law is subject to two limitations- 1. It is only applied in the absence of local statutes covering the same matter (only to fill in the lacuna in the local system) 2. Only that part of the English Law that is suited to the local circumstances will be applied.  COMMON LAW & EQUITY Common Law-Also known as judge-made law. Refers to law laid down by judges sitting in the superior courts as distinct from statute law enacted by the legislature. Equity-Was introduced to reduce the harshness of common law. It was developed out of the need to provide the plaintiff with relief where the strict common law rules granted as an unsatisfactory remedy or no remedy at all.  2.SYARIAH/ISLAMIC LAW Major source of Malaysian Law. Only applicable to Muslims. It is administered by a separate Shari’ah Courts. Article 3 of Fed Cons-Islam to be the religion of Malaysia but other religions may be practiced in peace and harmony. The state legislature have the power and permitted to make Islamic Laws pertaining to person professing the religion.  2.SYARIAH/ISLAMIC LAW Administered by separate court system, Syariah Courts. State legislature has the jurisdiction over the constitution, organization and procedures of syariah courts. Now Islamic laws are increasingly applied in banking and land laws other than applied to family and estate matters.  Sources of syariah Law Al-Quran Al-Hadith Ijma’ Ulama’ Qiyas 3.JUDICIAL DESICION/DOCTRINE OF BINDING JUDICIAL PRECEDENT/ DOCTRINE OF STARE DECISIS Case Law-Refers to past cases or case report eg: Malayan Law Journal and Current Law Journal. It refers to judicial decision of the court which is refer by the latter court as a guide to decide future case as similar facts and situation-Benchmark to other cases. 3.JUDICIAL DESICION/DOCTRINE OF BINDING JUDICIAL PRECEDENT/ DOCTRINE OF STARE DECISIS Case Law become as sources of law according to doctrine of binding judicial precedent/Doctrine of stare decisis. Precedents are the decisions made by judges previously in similar circumstances. year 1950 – killed by stick  punishment : go up coconut tree In year 2000 – same situation happen  punishment : same punishment  4. CUSTOMARY LAW Norms, behaviors, practices and beliefs which is carried by one generation to another. It is not specific and may be different to one another. marriage, divorce and inheritance are given legal force by the courts and some are dealt with by certain specific enactments. Judicial recognition of customs is quite common in a country populated by variety of people with diverse culture and religious background.  CUSTOMARY LAW WEST MALAYSIA Adat Temenggung Adat Pepatih Chinese & Hindu customary Law EAST MALAYSIA Adat Bumiputera Chinese & Hindu customary Law Faham tak…? LAW MAKING PROCESS LAW MAKING-PROCESS IN MALAYSIA  ADMINISTRATION OF JUSTICE THE FEDERAL COURT THE COURT OF APPEAL THE HIGH COURT THE HIGH COURT THE SESSION COURT  1st THE MAGISTRATES COURT class  2nd THE MAGISTRATES COURT class OTHER COURT