Introduction to law and Malaysian Legal System. Please kindly email to me at hidayahtul@tarc.edu.my or comment your email if you would like to have a copy of my slides. Thank you! Copyright © 2020, Nur Hidayahtul Nabihah Binti Manas

1. CHAPTER 1:
MALAYSIAN
LEGAL SYSTEM
Nur Hidayahtul Nabihah Manas
hidayahtul@tarc.edu.my
ABBL3104 Commercial Law Of Malaysia
May 2018-August 2018
Tunku Abdul Rahman University College,
Campus Pahang Branch.

2. Oxford English Dictionary
-‘the body of enacted or customary rules recognized by a
community as binding’.
Sir John Salmond
-‘the body of principles recognized and applied by the
state in the administration of justice
in other words, law consists of the rules recognized
and acted on by courts of justice.
In short, law may be defined as a body of rules which are
enforced by the State.
What is law?

3. •Regulates the relations between the citizen
and the state.
•Regulates the relations between individuals.
What is the function of law?

4. Classification of Law
Law
Public Law
Private
Law
Internation
al Law
*In our study here we will focus only on Public Law and Private Law.

5. Public law is that area of law which governs the relationship
between individuals and the State (i.e. Malaysia and its citizens).
What is Public Law?
• the structure of the principal organs of government and their
relationship to each other, and determines their principal
functions. It deals with the supremacy of Parliament, state
and federal powers and rights of citizens.
Constitutional
Law
• the duties and the exercise of powers by administrative
authorities i.e. government bodies, e.g. the powers of local
councils.
Administrative
Law
• codifies the various offences or wrongdoings committed by
individuals against the state, such as murder, robbery, criminal
breach of trust, causing grievous hurt, theft, cheating and
counterfeiting.
Criminal Law

6. Private law or more appropriately called Civil law is concerned
with matters that affect the rights and duties of individuals
amongst themselves.
What is Private Law?
Contract
Law
Insurance
Law
Sale of
Goods
Bills of
Exchange
Family
Law
Company
Law

7. Sources of Malaysian Law
Malaysian
Law
Written Law
Constitution
Legislation
Subsidiary
Legislation
Unwritten
Law
English Law
Court
Decisions
CustomsIslamic Law
Native Law

8. Written law is the most important source of law in
Malaysia.
Page 8
1.Federal Constitution
A written document which lay down the
powers of the federal government and the
rights of the citizens. It is the supreme law of
the country.
Written Law:

9. 2.Legislation
Legislation happens at two levels – Those made by Parliament at the
Federal level and those by the State Legislative Assembly for the State.
Legislation
Federal
Parliament
Acts
State
State
Legislative
Assembly
Enactments /
Ordinances

10. 3.State Constitution
There are 13 states which comprises the federation. Each state has its
own written constitution governing the state.

11. 4.Subsidiary or delegated legislation
The Interpretation Act 1967:
“any proclamation, rule, regulation,
order, notification, by-law or other
instruments made under any
Ordinance, Enactment or other lawful
authority and having legislative effect.”
If the subsidiary legislation is
contravening a parent Act or the
Federal Constiturion, it becomes void,
unless it is a proclamation of an
emergency under Article 150 of the
Federal Constitution.

12. 1.Common Law
Common law means judge-made law arising
from judicial decisions or court decisions. They
are made by judges sitting in the Superior Courts.
This practice is inherited from England.
In Malaysia, the judicial decisions are from the High
Court, the Court of Appeal, the Federal Court, the
then Supreme Court and the Privy Council.
Unwritten Law
Unwritten law does not mean it is not in writing. It
means that these laws are not made by
Parliament and it is not part of the
Constitution. It is also called non- statutory law.

13. 2.English Law
As a former colony of Britain, it is natural that English law is embedded into
the foundation of our legal system.
English law is adopted only in so far as they are suitable to local conditions
and if there is no statute in Malaysia on the particular issue.
*Acceptance of English law in Malaysia
(Section 3(1) of the Civil Law Act 1956)
West Malaysia: 7 April 1956
Sabah: 1 December 1951
Sarawak: 12 December 1949
Note: When there is a conflict between common
law and equity, Section 3(1) Civil Law Act 1956
provides that the rules of equity shall prevail.

14. 3. Local Customs
Malays, Chinese and Indians in Malaysia practice customs associated with their
ethnic group.

15. Other Sources of Law
1.Islamic Law
Islamic law is applicable only to Muslims and
administered in the Syariah Courts.
Article 121 (1A) Federal Constitution:
Civil Courts ‘shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah Courts’.

16. 2.Native Law
Applicable to natives of Sabah and Sarawak.
E.g.: native customs, religion and matrimonial maters.

17. System of Government in Malaysia
-The Federation comprises 13 states
controlled by a central government.
-There is a constitutional Monarch called the “Yang di-Pertuan Agong” who is the head
of the country with 13 state rulers.
-It practices a system of parliamentary democracy comprising of a legislative body
called Parliament, and the Executive or cabinet.
-The Judiciary is a separate and independent branch of the government.
-Islam is the religion of the Federation; but other religions may be practiced in
peace and harmony in any part of the Federation.
Basic features:

18. Doctrine of Separation of Powers
Separation of powers is a basic principle in a democratic form of government. It means
there should be three distinct branches of government.
Executive
Judiciary
Legislatur
e
All three branches are separate and independent of each other.
The American system of government is the closest to this concept of separation of
powers.

19. The Malaysian system, however, is more like the British system. There is no
separation between executive and legislative power because of the Cabinet-style of
organization.
There is a fusion of legislative and executive functions. The cabinet consists of the
ministers who are also members of Parliament. So the executive branch of
government is also part of the legislature.
Executive
JudiciaryLegislature
But the judiciary is still independent of the other two branches. No Member of
Parliament or the executive can become a member of the judiciary or vice-versa.

20. 1.Executive
YDPA
Prime Minister
Cabinet of Ministers
Enforce the laws made
by the legislature and it
also responsible for the
government
administrative system.

21. 2.Legislative
YDPA
House of Senate
House of Representatives
Makes laws for the
whole country

22. First
Reading
• A Bill is presented by one of the two houses.
• Only the title of the bill is introduced and read as a formality.
• After the bill is read, its text is printed and distributed to the members of both houses.
Second
Reading
• Members of the house will debate on the bill.
• It is then passed on for consideration by the Committee of the House.
Committee
Stage
• Discussed the bill in detail taking into consideration the debate in the second reading
• May make amends to any part of the bill.
• Then submits a report to the house.
• If the report is accepted, the bill is then sent for the third reading.
Third
Reading
• At this stage, no debate may take place nor any amendments be made.
• The vote by a simple majority either to pass or defeat the bill.
• After passing it, the bill will go to the next house where it goes through a similar process.
Royal
Assent
• After the Bill is passed by both Houses, it is presented to the Yang di-Pertuan Agong for the Royal Assent.
• The Bill now becomes an Act of Parliament.
Gazette
• No law shall come into force until it has been gazetted (published).
• The date the Act of Parliament is gazetted or published is the day the law will come into force.
The law making process of Parliament:

23. 3. Judiciary
Federal Court
Court of
Appeal
High Court
of Malaya
High Court
of
Sabah & Sarawak
Sessions
Court
Sessions
Court
Magistrates
Court
Magistrates
Court
Subordinate
Courts
Superior Courts
Syariah
Court
Court For
Child
Martial
Court
Labour
Court
Industrial
Court
Special
Court
To apply the
law.

24. How the judges arrived to their decisions?
• Decision from the higher court
binding the lower court
Judicial Precendent
• Literal Rule
• Golden Rule
• Mischief Rule
• Purpose Approach
Statutory Interpretation

25. Doctrine of Judicial Precedent
A judicial precedent can be defined as ‘a judgment or
decision of a higher court of law cited as an authority for the
legal principle embodied in its decision’ and this legal principle
is automatically binding on all lower courts.
This practice is sometimes called ‘stare decisis’ meaning a
doctrine according to which previous judicial decisions must
be followed.
Once a precedent is made, it remains binding on the lower
courts until it is overruled by a higher court in a later case.

26. Statutory Interpretation
The judge’s duty is to apply the law by interpreting the law
i.e. he has to give meaning to the law.
The courts have over the years developed four rules or
methods to help them interpret statutes
1.The Literal Rule
This rule states that the words in question must be given
its literal or ordinary meaning.
R v City of London Court Judge (1892):
“… if the words in the Act are clear, you must follow
them, even though they lead to a manifest absurdity.
The court has nothing to do with the question of
whether the legislature has committed an absurdity.”

27. 2.The Golden Rule
Presumes that a mistake has been made in the
wordings of the Act and allows the judge to modify
the language used in the legislation to overcome
the defects of the Act which have resulted in
absurdity.
Grey v Pearson (1857):
“…the grammatical and ordinary sense of the
words may be modified, so as to avoid that
absurdity and inconsistency, but no farther.’

28. 3.The Mischief Rule
Sometimes the words in the statute are ambiguous
i.e. the words have more than one meaning. The
court has to determine the right meaning to give
the right effect to the law. To do this the court had to
consider four factors, also known as the rule in
Heydon’s Case (1584).
Heydon’s Case (1584)
What was the common
law before the statute
was passed?
What was the
‘mischief’ or problem
that the statue was
attempting to remedy?
What remedy had
Parliament resolved to
provide,?
What was the true
reason for the remedy?

29. When some words used in the statute did not give a
clear meaning and intention of the law, the court
may proceed to look at the overall intention of the
legislature by reading the statute as a whole and
ask ‘What is the purpose of the statute when it
was enacted?’ Is it to remove a problem or to
prevent something?
4.The Purpose Approach
United Hokkien Cemeteries, Penang v Majlis
Perbandaran Pulau Pinang (1979):
‘I see no reason therefore why the same
interpretations should not be extended to a
columbarium and the repose of the ashes of the
departed kept in their honour and in memory of them
should not be regarded as a religious worship…’

30. Aids To Interpretation:
These methods are used by judges to help them when
interpreting the law.
1. Ejusdem Generis Rule
This is where general words are used together with a class
of specific words.
The rule of interpretation would be to interpret the general
word restrictively so as to bring its meaning within the
class of words used. E.g. the law prohibits the
possession of ‘heroin, opium, cocaine, marijuana and any
other drugs’.
The phrase ‘any other drugs’ does not mean all other drugs
but only drugs of the same kind or class to heroin, opium,
cocaine or marijuana, which are all made from plants.

31. b. Use of External Materials or Extrinsic Materials
External material means material found outside of the statute
such as records of Parliamentary debates and reports of
the committee that prompted the enactment of a statute.
The rules of statutory interpretation do not allow the use of
such extrinsic materials. However, the trend in some common
law countries is moving the other way by allowing the use of
these materials if it can help solve the problem.

32. THANK YOU