Chapter 1 - Malaysian Legal System PDF

LAW277 CHAPTER 1- MALAYSIAN LEGAL SYSTEM PREPARED BY NOORSALIZA AMIN NUDIN DEFINITON OF LAW Generally law is: A set of rules enforceable by state which the parliament, the government, the king, the monarch or the court has made which everyone has to follow or otherwise they have to face...

LAW277 CHAPTER 1- MALAYSIAN LEGAL SYSTEM PREPARED BY NOORSALIZA AMIN NUDIN DEFINITON OF LAW Generally law is: A set of rules enforceable by state which the parliament, the government, the king, the monarch or the court has made which everyone has to follow or otherwise they have to face sanctions or penalty as consequences of its breach. DEFINITION OF LAW ACCORDING TO SCHOOL OF THOUGHTS Natural Law According to jurist, St. Thomas Aquinas, “Law is a rule and measure of acts, whereby man is induced to act or to restrain from acting…now the rule and measure of human acts is the reason, which is the first principle of human acts…consequently it follows that;” DEFINITION OF LAW ACCORDING TO SCHOOL OF THOUGHTS Positive Law John Austin - “Law is a command set by the sovereign or superior being to an inferior being, enforced by sanctions.” According to the jurist, John Austin, law is the command of the sovereign body in a society and enforced by sanctions (punishment), to be applied in the event of disobedience DEFINITION OF LAW ACCORDING TO SCHOOL OF THOUGHTS Sociological Law Roscoe Pound - “Law is an instrument of social engineering; to maximize the fulfillment of interest of the community, provide smooth running of the machinery of society.” Karl Marx views law as a tool and an important means to shape the society DEFINITION OF LAW ACCORDING TO SCHOOL OF THOUGHTS Realist Law Oliver Wendell Holmes – “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Classification of Law 1) Public Law Public law is the law that governs the relationship between individuals and the state. These areas are constitutional law, administrative law and criminal law, revenue law. 2) Private Law Private law is concerned with matters that affect the rights and duties of individuals amongst themselves. Some types of private law are contract, tort, trust, land, family, partnership, agency and commercial law. Classification of Law 3) International Law International law is the body of law composing of principles & rules of conduct which governs the relations of countries for example the rules of war. It’s comprises of the principles and rules of conduct which countries feel themselves bound to observe in their relations with each other. International law consists of general principles of law, customs, conventions, treaties. International law can be divided into two, public international law and private international law. Sources of Law 1) Unwritten Law The unwritten law comprises the following: Principles of English law Judicial decisions/precedent of superior courts e.g. the High Courts, Courts of Appeal and the Federal Court. Customary Law Islamic law 2) Written Law Federal Constitution State Constitution Legislation Subsidiary Legislation Sources of Law – Unwritten Law 1) Principles of English law The application of English Law - Civil Law Act 1956 Section 3 and 5 of the Civil Law Act Conditions: there must be a lacuna in law, and the principles of English law is suitable to the local circumstances.  Sources of Law – Unwritten Law 1) Principles of English law. Section 3: Application of English Law in Malaysia i) Section 3(1)(a) of the Civil Law Act 1956 provides that the Court shall in West Malaysia apply the English common law and rules of equity as administered in England on 7 April 1956. ii) Section 3(1(b) of the Civil Law Act 1956 provides that the Court shall in Sabah apply the English common law, rules of equity and statutes of general application as administered or in force in England on 1 December 1951 iii) As for Sarawak, Section 3(1)(c) of the Civil Law Act 1956 allows the Court to use English common law, rules of equity and statutes of general application in force in England on 12 December 1949.  Sources of Law – Unwritten Law 1) Principles of English law. Section 5: Application of English Commercial Law in Malaysia i) Section 5(1) of the Civil Law Act 1956 provides that for West Malaysia (except for Penang and Malacca), the principles of English commercial law as at 7 April 1956 shall be applied in the absence of local legislation ii) As for the states of Penang, Malacca, Sabah & Sarawak, Section 5(2) of the Civil Law Act 1956 provides that the principles of English commercial law as at the date on which the matter has to be decided is to be used, where there is no Malaysia legislation on that area. Sources of Law – Unwritten Law 2) Judicial Precedent A precedent is commonly defined as “ a judgment or decision of a court of law cited as authority for the legal principle embodied in its decision”. This practice of following precedent is also known as stare decisis (stand by what has been decided). It is a legacy of the English common law system. A judge will give reasons for reaching his decision and in these reasons lies the ratio decidendi (the reason behind the decision) or the legal principle behind the decision. Sources of Law – Unwritten Law 2) Judicial Precedent The Application of the doctrine of Binding Precedent in Malaysia: The general rule is, where the subsequent case is in pari material (upon the same matter or subject) to the earlier case: i) Vertical operation - Courts of lower rank in Malaysia are bound to follow the decisions of the courts of higher rank in this country – ii) Horizontal operation - Courts of the same rank are also bound to follow its previous decision. Sources of Law – Unwritten Law 3) Customary Law Customs are proved through repeated acts practised over a long period of time, leading to the conclusion that by common consent they have become the accepted norm, or the law of the place, to the exclusion of ordinary law. In Malaysia, the term is also known as adat or ‘native law & custom’ Art 160 of Federal Constitutions includes ‘customs & usages having the force of law’ in the definition of law. Sources of Law – Unwritten Law 3) Customary Law There is no common customary law for all communities. i) Malays – Adat Perpatih & Adat Temenggung ii) Natives of Sabah & Sarawak - Native law & custom iii) Chinese – Chinese Customary law iv) Indian – Indian Customary law Sources of Law – Unwritten Law 3) Customary Law i) Malay Customary Law Customs and traditions in the Malay community which in course of time have obtained the character of laws and as such can be enforced by the chiefs or elders. Malay adat comprises Adat Perpatih and Adat Temenggong. Adat Perpatih Adat Perpatih is practiced by the Malays in Negeri Sembilan and Naning in Malacca. It is effective in matters such as land tenure, lineage and the election of Lembaga, Undang, Yang Dipertuan Besar etc. This adat is well noted for its matrilineal system. Adat Temenggung Adat Temenggung is practiced in other states of Malaysia – based on patrilineal system with traces of Hindu elements. There are rules relating to tittle to land, succession to property, marriage, divorce, election of official etc. Sources of Law – Unwritten Law 3) Customary Law ii) Malay Customary Law in Sabah and Sarawak In Sabah, Malay adat is a mixture of Islamic law and adat and is applicable in matters concerning marriage, inheritance, division of property etc. In Sarawak Malay adat were codified by the rajahs under Undang-Undang Mahkamah Melayu Sarawak (1915) and the Muslim Wills Ordinance 1896. Malay customary laws were previously administered by the Native Courts but following the amendment to the law, they are now administered by the Islamic Council of Sarawak and the Shariah Court. Sources of Law – Unwritten Law 3) Customary Law iii) Native Customary Law in Sabah and Sarawak Native law which applies to the non-Malay natives of Sabah and Sarawak is enforced by the Native Courts in the respective states. In Sabah Native Customary law can be found in codes compiled by GC Woolley. They were published as Native affairs Bulletin No. 1-7. Adat in these bulletins are defined as a set of prescriptions, breach of which involves penalties mostly expressed in monetary terms. The subjects covered: inheritance, marriage, divorce, compensation. In Sarawak, they have been recognised since the days of Rajah James Brook. The Ondang-Ondang Lapan of 1843 was the first codification of the law. Native Customary Law Ordinance was passed in 1955. There are other compilations of Adat for example, Dayak Adat Law 1963 and Dayak ( Bidayuh) Adat law 1964. Sources of Law – Unwritten Law 3) Customary Law iv) Chinese and Hindu Customary Law Old Chinese and Hindu customs are now obsolete as they have been replaced by the written law. After the enforcement of the Law Reform (Marriage and Divorce) Act 1976, their polygamous marriages for instance have been abolished. Thus, Chinese or Hindu customs have become of little or no effect as a source of law in Malaysia Sources of Law – Unwritten Law 4) Islamic law In Malaysia the Islamic law applied is of the Shafii school of jurisprudence (mazhab), with some modification by Malay adat (customary) law. Article 121(1A) of the Federal Constitution states that the civil courts have no jurisdiction in respects of any matter within the jurisdiction of Syariah court. It possessed civil jurisdiction in proceedings between parties who are Muslims, and limited criminal jurisdictions over offences by Muslims against religion. Sources of Law – Unwritten Law 4) Islamic law Article 3 of the FC provides that, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The YDPA will be head of the religion of Islam for states that does not have a Ruler and for Federal Territories of Kuala Lumpur, Putrajaya and Labuan. The Ruler is the head of religion of Islam in his state. Sources of Law – Unwritten Law 4) Islamic law State Administration of Islamic Law 3 independent authorities: i) Majlis Agama Islam (or its variation) : all matters concerning Islamic religion except on law & justice ii) The Mufti (highest religious official) : determination of Islamic laws iii) Syariah Courts: administration of justice Sources of Law – Written Law 1) Federal Constitution Federal Constitution is the supreme law of the country and no law can go against it. It sets out the structure of the government and states that Malaysia is a system of parliamentary democracy with no separation of legislative and executive branch. However, the judiciary is a separate branch. The Federal Constitution also states the basic rights of every citizens, such as rights to education, citizenship rights and voting rights. There is also freedom to practice one’s own religion, although Islam is the religion of the Federation. Sources of Law – Written Law 2) State Constitution Each state has its own constitution. This constitution regulates the government of that particular state. The power of a state is provided in the 'State List' of the Federal Constitution. Example of matter which falls under the State List is Islamic personal and family laws. Sources of Law – Written Law 3) Legislation Legislation is also known as primary legislation which refers to law enacted by: Parliament – at federal level State Legislative Assemblies - at state level Sources of Law – Written Law 3) Legislation Types of Legislation: i) Acts – enacted by the Parliament ii) Enactments – enacted by State Legislative Assembly (Dewan Undangan Negeri) iii) Ordinances Promulgated by YDPA during emergency Laws enacted by Sarawak State Legislative Assembly Laws enacted by the Parliament between 1st April 1946 until 10th September 1959 Sources of Law – Written Law 3) Legislation Legislative Process/The Law-making Process Article 44 of the Federal Constitution vests the legislative authority of Malaysia in Parliament (comprising of the YDPA and the two Houses of Parliament, i.e. the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives). Normally, a Bill introduced in either House, goes through four stages: First Reading, Second Reading, Committee Stage and Third Reading. When both Houses have approved it, it is presented to the YDPA for Royal Assent (this is done by affixing the public seal after which the Act is published. A Bill becomes law after receiving the Royal Assent but no law shall come into force until it has been published in the Gazette Sources of Law – Written Law 4) Subsidiary Legislation Subsidiary legislation is defined by Section 3 of the Interpretation Act 1967 as ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’. It is also known as delegated/ subordinate legislation. Subsidiary legislation is the law made through powers delegated by the legislature to a body or person via a parent statute Sources of Law – Written Law 4) Subsidiary Legislation Most of the time subsidiary legislation is made by the executive (administrators). Executive law making is inconsistent with the doctrine of separation of powers. Due to the above reasons, we need some form of control over subsidiary legislation to protect the public from such abuse, for example judicial control, legislation control, consultation and publication.