2. LAW
PUBLIC LAW INTER. LAW
(governs the r/ship b/w (Law that prevails betw
individuals & state) PRIVATE LAW States)
(Rights and duties of individuals inter se)
PUBLIC PRIVATE
INTER. LAW INTER. LAW
CONSTI. CRIMINAL
LAW LAW
(Rights of (Offences CONTRACT
individuals
against the TORT TRUST
State. e.g CBT, murder (Rights & (Relationship
in the
Obligations (Offences
State –e.g supremacy obligations between
Of Parliament &
imposed on against
Individuals not that arise by trustee (has control&
Rights of citizen
to commit crime individuals) beneficiary)
agreement)

3.  Sources can be:
 Historical sources
- Factors that have influenced the development of the law,
e.g. religious beliefs, local customs.
 Legal sources
- The legal rules that make up the law.
 Places where the law can be found
- e.g. statutes, law reports, etc.
 Sources of M’sian law means – the legal
sources.

4. SOURCES OF MALAYSIAN LAW
Written law Unwritten law Muslim law
Federal State English Judicial
Constitution Constitution Custom
Law; Decisions
Legislation
(Laws enacted by P’ment or Common
State Legislative Assemblies Equity
e.g. Acts, Enactments, ordinance)
law
Subsidiary Legislation
(any rule, order, regulation, by-law)

5.  M’sian law can be found in the judicial decisions of
the High Ct, COA & Fed. Ct., also Supreme Ct, &
Judicial Committee of the Privy Council.
 Decisions of this court were made and still are being
made systematically by the use of what is called the
“doctrine of binding judicial precedent”.
 Judges do not decide case arbitrarily but follow the
accepted principles known as precedents, i.e.
decisions made by judges previously in
similar situations. E.g. SCt made a certain
decision in 1987 & assuming the facts & situation b4
a H.Ct judge deciding a case in 1990 are similar to the
said S.Ct case, the H.Ct judge must decide the case
b4 him by applying the principles laid down by S.Ct in
1987.

6.  The sytem of binding judicial precedent called
stare decisis.
 If a judge applies an existing rule without
extending it = a declaratory precedent.
 A case without precedent = an original
precedent.
 This system is based on the hierarchy of the
decisions which based on the hierarchy of
courts.

7. THE JUDICIAL SYSTEM
FEDERAL COURT
COURT OF APPEAL
HIGH COURT HIGH COURT
Malaya Sabah & Sarawak
Syari’ah
Sessions Court Sessions Court Court
Syari’ah
&
Court Magistrate’s Court Magistrate’s Court Native
Court
Small Claims Court Small Claims Court
Penghulu’s Court
7

8.  The functioning of the system of precedents is
based on the hierarchy of decisions and
inevitably the hierarchy of courts.
 The general rule regulating the hierarchy of
precedents is based on the principle that
decisions of higher courts bind lower courts
and some courts are bound by their own
decisions.

9.  A judge may not apply the same principle in the
situations such as:
 Precedent laid down by the lower court, where the
case is on appeal;
 The earlier precedent is made per incuriam (made
in ignorance of a statute or a binding precedent);
 When there are material differences in facts
(between the case before them & case that laying
down the precedent).

10.  ADR - Alternative dispute resolution has greatly
expanded over the last several years to include
many areas in addition to the traditional
commercial dispute in the form of arbitration;
mediation has become an important first step in
the dispute resolution process.
 Commonly describes processes such as facilitation,
negotiation, mediation and early neutral evaluation,
to help disputants resolve a conflict without a
formal decision by a court or agency.

11.  Arbitrators and mediators have an important role in
resolving disputes. Mediators act as neutrals to
reconcile the parties differences before proceeding to
arbitration or litigation. Arbitrators act as neutral third
parties to hear the evidence and decide the case.
 Instead of bringing an action in a court of law the
parties may agree to submit a dispute to arbitration
 ADR tries to identify and meet the underlying interests
of the parties in the dispute.
 When successful, ADR may achieve results that a
court could not order, give the parties more ownership
in the result and reduce litigation and agency costs.

12.  Basic principles of ADR:
 Voluntary
- The parties agree to submit the dispute to mediation
 Timeliness
- Shorten proceedings
 Good faith
- An attempt to reach agreement
 Confidentiality
- The process require confidentiality

13.  Privacy; dispute involve personal & confidential
matters is not debated in open court
 Convenience; the arbitration is held at a place
& time convenience to the parties & the
arbitrator
 Speedy settlement; delays often met in
litigation are overcome. Time is money to
commercial men.
 Informality; technical procedures rules of a
court of law are not rigidly applied
 Expenses are generally less than litigation fees.

14.  The dispute may hinge on difficult points of law-
an arbitrator may not have the requisite
expertise
 The doctrine of precedent does not apply. Each
case is decided on its merit; and is therefore no
guide to future similar cases.

15.  What are the advantages & disadvantages
of the binding judicial precedent system?
Discuss.
 What are the differences of the court system
& ADR? Discuss the benefits of the ADR
compared to the court system.