Sources of law in Malaysia

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Sources of law in Malaysia

  1. 1. 1.1 CLASSIFICATION OF LAW
  2. 2. CLASSIFICATION OF LAW LA W PUBLIC LAW PRIVAT E LAW INTERNATION AL LAW RELATIONSHIP BETWEEN INDIVIDUAL AND STATE RELATIONSHIP BETWEEN STATES RELATIONSHIP BETWEEN INDIVIDUALS CRIMIN AL LAW CONSTITUTION AL LAW PRIVAT E PUBLIC CONTRAC T LAW TRUST S
  3. 3. PUBLIC LAW  It governs the relationship between individuals and the state i) Constitutional Law  Lays down the right of indv. In the state.  Deals with questions such as supremacy of Parliament & rights of citizens ii) Criminal Law  Codifies the various offences committed by indv. against the state.
  4. 4. INTERNATIONAL LAW  A body of law which is composed to lay down principles and rules of conduct which the States feel themselves need to observes in regulating the relationship with each other. i) Public International Law  The law that prevails between States ii) Private International Law  Consists of the rules that guide a judge when the laws of more than one country are involve in a case.
  5. 5. PRIVATE LAW  Concerned with matters that affect the rights and duties of individuals amongst themselves. i) Contract ii) Tort iii) Trust
  6. 6. 1.2 SOURCES OF LAW
  7. 7. SOURCES OF LAW    Sources - a place which something comes or is obtained. Source of law can be found in : a) Historical sources – Religious belief, local customs, opinion of jurists, historical development. b) Legal sources – Formal sources that make law. Written Islamic Sources of Malaysian Unwritten Law consists of : • Constitution • Legislation • Subsidiary Legislation • • • • Customary English Judicial Decision Jurist Writing
  8. 8. WRITTEN LAW FEDERAL AND STATE CONSTITUTION FEDERAL AND STATE LEGISLATION SUBSIDIARY LEGISLATION
  9. 9. FEDERAL & STATE CONSTITUTION  The body of legal and non-legal rules concerning the government of a state.  A single written document having special legal status, which establishes the state and sets out the structure and powers of the state.  In Malaysia 2 types of constitution involves :   Federal Constitution State Constitution ( Undang-Undang Tubuh Kerajaan Negeri)
  10. 10. KEY ELEMENTS OF THE MALAYSIAN CONSTITUTION The constitution is the Supreme Law of Malaysia Malaysia is a Constitutional Monarchy There are three branches of Government a) Legislature b) Executive c) Judiciary
  11. 11. FEDERAL CONSTITUTION  Highest law of the land.  Article 4 mentioned about the Supremacy of Constitution.  Case : Ah Thian v Government of Malaysia Suffian LP pointed out ‘The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have written constitution. The power of Parliament and of State Legislatures in Malaysia is limited by the Constitution and they cannot make any law as they please.
  12. 12. STATE CONSTITUTIONS     Called as Undang-Undang Tubuh Negeri. Have in 13 states. Provide State Legislative Assembly to make law (Enactment) State Government headed by Menteri Besar (with Sultan) and Ketua Menteri (no Sultan). Malay Rulers may act under his discretion on following matters : Appointment of Menteri Besar  Witholding consent to request dissolution of Legislative Assembly  Head of Islam  Appointment of Heirs, Consort, Regent, Council of 
  13. 13. CONSTITUTIONAL AMENDMENT  Art 159 and Art 161E  Simple Majority  2/3 majority of total members of Dewan Rakyat.  2/3 majority + Conference of Rulers  2/3 majority + Consent from YDP Negeri Sabah and Sarawak
  14. 14. LEGISLATION  Law enacted by the legislature and by bodies and persons authorized by the legislature.  Legislatives bodies in Malaysia  Federal : Parliament (Dewan Rakyat dan Dewan Negara) Called as ACT  State : Legislative Assembly Called as Enactment and Ordinance (Sarawak)  Word Ordinance also used for any law passed
  15. 15. FEDERAL LEGISLATION  4 types of Act. Act – main Act like Contract Act 1950  Amendment Act – changes in Principal Act  Revised Act – changes made by Commisioner of Law Reform such as Civil Law Act 1956 (Revised 1972)  Consolidated Act – bring together simple Act or more on specific matters.  Principal
  16. 16. LEGISLATIVE PROCESS   Before any law can be called as Act, they are known as Bill. Three types of Bill involved:  Public Bill - Matters concerning defence, taxation, public order  Private Bill – local or private matters  Hybrid Bill – public matters that also affect private bodies
  17. 17. LAW MAKING PROCESS IN PARLIAMENT • Government Proposal (Discuss in ministry level) Pre-Parliamentary Stage First Reading • Sent the proposal to the Parliamentary Draft person in the Attorney General’s Chambers. • The proposal becomes Bill. • Cabinet gives approval for the bill. • When a bill is first introduced by one of the two houses, only the title is actually read. After the Bill is passed at this stage, the text is printed and distributed. Second Reading • The minister will present the outline of the Bill. • The house will debate on the principle • If the bill receives the required number of votes, it will proceed to committee stage Committee Stage • If the Bill required more detailed and scrutiny, the House may refer the Bill to a selected committee but this rarely happen
  18. 18. Third Reading House of Senate Royal Assent Publication • The bill is review again. • Debates will centered on general principles. • Substantives amendments are no longer allowed except with permission of the speaker to correct errors • The Bill is passed to the House of Senate. • Similar produces with Dewan rakyat • Under Art. 66(4), the YDPA shall within 30 days after the Bill is presented to him, assent to the Bill by causing the Public Seal to be affixed thereto. • If 30 days expire and no assent is given, the Bill becomes law. • Once the Bill is given Royal Assent, it becomes an Act. • An Act of Parliament only come into forces upon it being published in gazette.
  19. 19. SUBSIDIARY LEGISLATION    Law made through powers delegated by legislature to a body/person via enabling or parent statute. Section 3 interpretation Act 1948 and 1967 defines as ‘any proclamation, rule, regulation, order, notificatio n, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legal effect’ Example : Various parking rules made by municipal councils.
  20. 20. ADVANTAGES AND DISADVANTAGES OF SL  Advantages  Save  time for Legislatures  Technical Expertise  Flexibility and Convenience  Legislation can continue even not in sessions Disadvantages Loss of Legislative control  Bulk and frequent changes 
  21. 21. HOW TO CONROL SL?  Judicial Control   Legislative Control   Legislature will delegated power by an enabling statute may repeal the statute or revoke or vary the delegated power Consultation   Court has power to make judicial review and declared the SL would be ultra vires either substantive and procedural Refer to certain professional bodies Publication  Publish the SL
  22. 22. UNWRITTEN LAW ENGLISH LAW JUDICIAL DECISION CUSTOMARY LAW ISLAMIC LAW JURISTS
  23. 23. ENGLISH LAW  Application of English Law in Malaysia  Section 3 and Section 5 Civil Law Act 1956 stated the application of English Common Law and Equity in Peninsular Malaysia.  Section 3 (1) (a), West Malaysia apply common law and equity as administered in England on 7th April 1956  Section 3 (1) (b) and (c), apply the common law and equity together with statutes of general application as administered in England on Sabah [1st December 1951] Sarawak [12th December 1949]
  24. 24.   Section 5 (1), all states apply English Common Law including Statutes on 7th April 1956 Section 5 (2), Penang, Malacca, Sabah and Sarawak can use relevant and applicable English Common Law continously.
  25. 25. SITUATIONS THAT ENGLISH LAW CAN APPLY  Suitable for local circumstances  Case : Syarikat Batu Sinar v UMBC Finance as the Judge said that ‘…we have to develop our own common law…by directing our minds to the ‘local circumstances’ and ‘local inhabitants.’  Case : Leong Bee v Liang Nam Rubber Works. The use of Section 3 must be permitted by local circumstances.  Absence of local laws  Case : AG Malaysia v manjeet Singh Dillon. Absence of local legislation on contempt of court must be referred to the English Common Law.
  26. 26.  Cut off date  Case : Lee Kee Cheong v Empat Nombor Ekor Sdn. Bhd. Cut off date must be followed  Case : Jamil Harun v Yang Kamsiah. Any changes after this date would only rendered as persuasive and not binding.
  27. 27. SITUATIONS THAT ENGLISH LAW CAN APPLY  Section 5 (1) and (2)  Case : Seng Djit Hin v Nagurdas Purshotumdas. The application of statutes administered in England could be allowed if failure to deliver goods (sugar) that causes damages. Two English statutes were allowed to applied in SS  However, in Sheikh Sahied Abdullah Bajerai v Sockalingam Chettiar. The use of statutesin moneyhandling transaction was not allowed since it only to control activities in England.
  28. 28. JUDICIAL DECISIONS  Law can be created through decisions made by judges of Superior Courts and Subordinate Courts FEDERAL COURT COURT OF APPEAL HIGH COURT OF MALAYA SESSIONS COURT MAGISTRATE MAGISTRATE COURT COURT SUPERIO R COURT HIGH COURT OF SABAH AND SARAWAK SUBORDIN ATE COURT
  29. 29.      Where material facts are the same, court must follow prior decisions, its own prior decisions. The judicial decision that binds called as ‘ratio decidendi’ (reason for decision) extract from ‘obiter dictum’ (remark in passing judgement) The judicial decisions of superior courts binding subordinate courts in the doctrine of judicial binding precedent or ‘stare decisis’ Rationale – justice; similar material facts, certainty, development of law. Disadvantage – rigid, illogical, complexity of laws.
  30. 30. ‘STARE DECISIS’   When the cases having same material facts, the subordinate court must follow prior decision of higher court, its own prior decision or the same level of courts’ decision. Two ways operation:  Vertical – a court bound by decision of higher court.  Horizontal – some courts bound by its own previous decision, decision of predecessor, court with coordinate jurisdiction.
  31. 31. CASES OF STARE DECISIS   This doctrine affirms to the case of PP v Datuk Tan Cheng Swee. Chang Min Tatt FJ stated ‘… it is however necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Courts and other inferior courts in common law such as ours, to follow similarly…’ When two conflicting decision of Federal Court, follow the later decision – Dalip Bhagwan Singh v PP.
  32. 32. EXCEPTION OF STARE DECISIS  Judge would not applied early precedents if :  Precedent laid down by lower court where case on appeal  Per Incurium ( wrongfully decided)  Material differences in the fact of case.
  33. 33. CUSTOMARY LAW    The regular pattern of behaviour accepted by a given society as binding upon itself. Customs are proved through repeated acts practised over long period of time, leading to conclusion that by common consent they have become accepted norm, or the law of the place, exclusion of ordinary law. Article 160 – Customs and usages having the force of law.
  34. 34. APPLICATION OF CUSTOMARY LAW  Sahrip v Mitchell and Endain – test on reasonableness of customs, used in proving English customs, to determine if a custom accepted.  The Malay Custom on land tenure which provided payment of tithe of 1/10 of total produce was good and reasonable custom.  Maxwell CJ affirm the existance of the customs must be based on :  Long usage  Reasonable and well suited  To late to question the existence of customs
  35. 35. WRITING OF JURISTS    Would become references in deciding cases and references of future laws Islamic Law matters – Prof Hashim Kamali used in deciding several cases like Meor Attiqurrahman (serban’s case) Others – MB Hooker, RJ Wilkinson, Prof Ahmad Ibrahim
  36. 36. ISLAMIC LAW
  37. 37. ISLAMIC LAW (SYARIAH)       Sacred law of Islam revealed through Prophet Muhammad (p.b.u.h) in the Quran and Sunnah. Malay-Muslim Law was the basic law of the land before British intervention. After British intervention, Muslim Law had been reduced to manage personal matters. However, civil courts still acknowledged the importance of Islamic Law to local circumstances and not as foreign law. (Ramah v Laton) Syariah courts dealing with matters of Islamic Law like family, dividing property, maintenance. Administration of Islamic Law – Majlis Agama Islam, Mufti, National Fatwa Committee.
  38. 38. APPLICATION OF ISLAMIC LAW IN FEDERAL CONSTITUTION      Article 3 – Islam religion of the Federation. But in Che Omar Che Soh, Article 3 does not establish Malaysia as Islamic State. Article 11(4) – restrict the propagation of other religion to muslims Article 12 (2) lawfully to maintain Islamic Institution Article 121(1A) – High Court cannot interfere with matters in Syariah Court Paragraph 1 List II Ninth Schedule – Permits state power to create and punish offences related to Islam

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