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TOPIC 1 - INTRODUCTION TO LEGAL SYSTEM.pdf

The document provides a comprehensive introduction to law and the legal system, covering definitions, types of law, jurisprudence, and the rule of law. It discusses key concepts such as law and justice, law and ethics, and various sources of law, including statutory and customary law. It also details the legal system in Malaysia, including the roles of the federal constitution, state constitutions, and judicial precedents.

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INTRODUCTION TO LAW & THE LEGAL SYSTEM
RECOMMENDED REFERENCES
CONTENTS ▪ Singularly Defined? - Defining ‘Law’ - Through Jurists Eyeglasses ▪ Law & Justice ▪ Law & Ethics ▪ Rule of Law ▪ Types of Law - Common Law & Equity - Statute Law - Public Law & Private Law - Civil Law & Criminal Law ▪ Other Types of Law
Singularly Defined? ◦ No single definition ◦ Variable, e.g. Banking, Criminal, Constitutional law ◦ Descriptive law v Prescriptive law ◦ A force & coercion ◦ A limitation of freedoms ◦ A device to regulate economic & social behaviour ◦ A morality? ◦ Scholarly views?
Descriptive Law • Describe how people or natural phenomena normally behave e.g. law of gravity, law of nature, law of economics and etc. Prescriptive Law • Prescribe how people should behave e.g. speed limits.
DEFINING ‘LAW’ ❑ Sir John Salmond in Jurisprudence: “the body of principles recognized and applied by the State in the administration of justice…” ❑ John Austin in The Province of Jurisprudence Determined: “a command set by a superior being to an inferior being and enforced by sanctions (punishments)” ❑ Article 160 of Federal Constitution: “Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof..
VS
THROUGH THE JURISTS EYEGLASSES ◦ John Locke: ✓ A condition wherein all power & authorities is reciprocal/shared, no one having more than the other ✓ Equality in authority ✓ Prohibition of any subordination or subjection of one person to another ✓ Equality…not merely before legislators, judges and police but far more crucially, equality with legislators, judges and police
Definition of Justice Maximum happiness for maximum number of people (Bentham & Mill) e.g. law during Japanese occupancy in Malaya brought dismay than happiness Correct application of law as opposed to arbitrariness (Ross) i.e. decision made is based on rule of law and evidence, not by mere personal suspicion or opinion Virtue which results in each person receiving his due (Justinian) Impartial resolution of dispute (Curzon) i.e. non-discrimination LAW & JUSTICE
John Rawl’s FOUR (4) Characteristics of Justice Universal i.e. belonging to all & affecting all Made public i.e. gazetted Final i.e. not volatile or prone to change Must decide between competing interest
LAW & ETHICS ◦ Mixture of Greek’s “ethos” (character) and Latin’s “mores” (customs) ❑ Defines what is good for individual-society & establishes duties people owe themselves & one another ❑ Examples of codes of ethics/conduct?
RULE OF LAW ❑ According to Dicey, rule of law involves three propositions: i. No person must be punished except for a breach of the law. ii. All persons are equal before the law irrespective of status or position. iii. Rights or freedoms of citizens are enforceable in the courts.
JURISPRUDENCE
Legal Positivism “Law properly, is the word of him, that by right hath command over others” Thomas Hobbes (1588-1679)
Natural Law “...the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite” Marcus Cicero “...every human law has just so much of the nature of law, as it is derived from the law of nature...to be genuine law, in other words, positive law must resemble the law of nature by being good – or at least by not being bad” St Thomas Aquinas
American Legal Realism “...behaviour of public officials (mainly judges) as they deal with matters before the legal system” American legal realist
TYPES OF LAW a) Common Law & Equity b) Statute Law c) Public Law & Private Law d) Civil Law & Criminal Law
1 - COMMON LAW & EQUITY Common Law ➢Law made by judges, who followed decision of other judges – a doctrine formalized later as stare decisis ➢Remedial aim – Monetary (Damages) Equity ➢Developed 200-300 years by Courts of Chancery after common law ➢Supplement (but not replace) common law ➢Remedial aim – A solution (fairness) where damages fail as ideal remedy
2 – STATUTE LAW ➢ A.k.a. Acts of Parliament ➢ Developed by Congress, Federal or State Parliament ➢ Specific & detailed but time-consuming (from developmental stage to amendment or termination)
3 – PUBLIC LAW & PRIVATE LAW
4 – CIVIL LAW & CRIMINAL LAW • Civil Law • Proven on balance of probability (by Claimant) • No punishment; compensation paid to innocent party • Criminal Law • Proven beyond reasonable doubt (by Prosecutor) • Punished with fines, imprisonment or community-based punishment
OTHER TYPES OF LAW a) Customary Law b) Religious Law c) Regional Law d) International Law
CUSTOMARY LAW ◦ Definition ◦ Type of Customs: i. General/Common ii. Local ◦ Case: Egerton v Harding 1974 ➢ Parties owned & occupied land adjoining in common ➢ D’s cattle strayed into garden of P ➢ P claimed D should reimburse her for damage caused & it was local custom to fence one’s land ➢ Case: Kiah v Som [1953] 1 MLJ 82
RELIGIOUS LAW ◦ Divine law ◦ Common associated with law of God e.g.~ ❖ Islamic/Shariah Law ❖ Christianity Law ❖ Jewish/Talmudic Law ❖ Hindu Law
REGIONAL LAW ◦ Definition? ◦ Law operating within a State ◦ E.g.~ Conflict of jurisdiction i.e. which State shall have the right of jurisdiction over a certain dispute if it involves several sovereign States
INTERNATIONAL LAW ◦ Regulates diplomatic relations between States ◦ No single authority adjudicating laws that bind other States, i.e. no world government ◦ Methods of creating International Law: ✓ Treaties ✓ Custom Effect of International Law? Is it binding per se?
INTERNATIONAL LAW ◦ In most legal system, national law overrides international law ◦ Akin to “A light that does not shine and a fire that does not glow” ◦ Not mentioned in definitions of law in Art.160 (2) of FC ◦ However, there are samples of legislations which had assimilated international principles e.g. Copyright Act 1987 (the Berne Convention), Human Rights Commission Act 1999 (the Universal Declaration of Human Rights 1948)
SOURCES OF LAW – MALAYSIA
SOURCES OF MALAYSIAN LAW
WRITTEN LAW Composition • Federal Constitution • State Constitution • Subsidiary legislation made by persons or bodies under powers conferred on them A.k.a. statutory law
WRITTEN & UNWRITTEN LAW Unwritten Defined in abstract sense E.g. Constitution of United Kingdom Defined in concrete sense E.g. Constitution of Malaysia Written
HISTORICAL DOCUMENTS MacMichael Treaties (1945) The Malayan Union Proposals (1946) The Federation of Malaya Agreement (1948) The Reid Commission Report (1957) The Federation of Malaya Constitutional Proposals (1957) The Cobbold Commission Report (1962) The Malaysia Agreement (1963) The Twenty Points Declaration (1963) The Rukun Negara (1970)
RULES OF INTERPRETATION Mischief Rule/ Heydon’s case Literal / Plain Meaning Rule Golden Rule Contextual Approach Courts assume that meaning & intention of law is clear in the statute If Literal Rule leads to absurdity; which Parliament couldn’t have intended, Court may substitute a reasonable meaning in light of the Statute as a whole e.g. rule on clothing @ XMU Courts shall consider 3 factors i.e. what was the law before Statute passed, mischief which Statute aimed to remedy, and what remedy Parliament tried to provide (lacked popularity) Words to be interpreted w/in context of statute as a whole e.g. “other animal” preceded by cats, dogs, guinea pigs; the former shall be understood as domestic animals
Contextual Approach • Flack v Baldry (1988) • Electric shock from a stun gun was well w/in definition of “any noxious liquid, gas or other thing” under Firearms Act1968 Golden Rule • Smith v Hughes (1960) • A prostitute was prosecuted for “soliciting in the street” when in fact she solicited from her balcony • Purpose of law was to prevent annoyance to public from such activities so prostitute as held to be guilty
The Law-Making Process in the Parliament ❑ Involves both the House of Representatives (Dewan Rakyat) and Senate (Dewan Negara) ❑ Not limited to law-making only; but also amending and termination of laws
THE FEDERAL CONSTITUTION • Supreme law of Malaysia/Grundnorm • Art. 4 of FC • Art. 162 (6) of FC - • Any law that conflicts FC is VOID to the extent of inconsistency • Supremacy is maintained by giving superior courts judicial review i.e. power to invalidate any legislative or executive act that violates FC
AMONGST THE RIGHTS GUARANTEED…
STATE CONSTITUTIONS • Each State possesses basic charter of its own • Art. 71 (4) of FC requires for State Constitution to contain certain essential provisions e.g. Rulers to act on advice, existence of Executive Council, or an elected state legislature
FEDERAL LEGISLATION • Known as “Ordinance” in 1946-1957; currently “Act of Parliament” • E.g. Internal Security Act 1960, Dangerous Drugs (Special Preventive Measures) Act 1985, Emergency (Essential Powers) Act 1979 • Parliament can legislate on 27 topics in Federal List & 12 topics in Concurrent List
STATE LEGISLATION • State Assembly has power to frame enactments on 13 topics in State List & 12 topics in Concurrent List • Power to amend State Constitution • Subjected to Federal Constitution
SUBSIDIARY/DELEGATED LEGISLATION • Sec. 3 Interpretation Act 1948 and 1967 “…any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect.” • Legislations made outside legislative halls by delegates i.e. the executives which reflects government’s increased role in administration • Contravenes the doctrine of separation of powers & vulnerable to abuse • Limited to subject matter authorised only • Open to review by courts • E.g. By-Laws (Municipal Council), Merchant Shipping Act (provide Marine Dept to issue licences & permits to boats, ships, tanker etc)
RATIONALES OF SUBSIDIARY LEGISLATION • Legislature has insufficient time to enact all legislation, detailed in every aspects, required in a modern society • Much modern legislation is highly technical and is best left to experts or administrators on the job who are well versed with the technical aspects to enact it • Legislature is not continuously in session and its legislative procedures are burdensome • Some laws need to be made/amend/repeal quickly to address certain urgent issues
CONTROLS OVER SUBSIDIARY LEGISLATION Judicial Control • Most important • Sec. 23(1) and 87(d) of Interpretation Act 1948 and 1967; any SL which is inconsistent with any Act of Parliament or State Constitution shall be void • Controlled by courts via judicial review • Two (2) types of ultra vires: i. Substantive – SL was made beyond limits of powers conferred ii. Procedural - failure to adhere to mandatory procedure Legislative Control • Direct control by Parliament • Presence of ‘Parent statute’ requiring SL to be laid before the Parliament either for confirmation or mere information • E.g. Trade Marks Act 1976, Trade Unions Act 1959 • Establishment of Scrutiny Committee (yet to be established in Malaysia)
OTHER CONTROLS Consultation • No general statutory provision • Few numbers of enabling Act which make consultation mandatory. H/ever, this has normally been conducted but rather on ad-hoc or voluntary basis • E.g. Central Bank Act 2009 which requires consultation to be made with Sharia’ Advisory Council of BNM in matters pertaining to Sharia’ or Islamic finance Publication • No general statutory provision • No mandatory requirement for publication but if enabling Act puts it so, then failure to comply shall result in such SL be void • E.g. publications of By-Laws
SOURCES OF MALAYSIAN LAW
• Found in specially formulated document • Grundnorm (highest law of land/law of laws) • Its supremacy is protected by “judicial review” – power of courts to invalidate executive & legislative actions on ground of unconstitutionality • Its principles are “entrenched” i.e. difficult to enact, amend or repeal • Ordinary law vs Constitution • Constitution is supreme; not the Parliament • Rigid Written • Not reduced to single document – its sources are written & unwritten, legal & non-legal etc • The Constitution is “scattered, heterogeneous and elusive” • No distinction between constitutional law & ordinary law for purpose of enactment, amendment or repeal • No judicial review of Statutes/Acts of Parliament • Parliament is supreme; not the Constitution • Flexible Unwritten
Historical documents e.g. Magna Carta 1611, Petition of Rights 1628, Bill of Rights 1689 Common law (judge- made laws/judicial precedents) Law & customs of Parliament Non-ratified international treaties e.g. European Convention on Human Rights Constitutional conventions (customs of constitution) Statutes e.g. Act of Settlement 1700 Delegated legislation Community law (law of the European Union) Juristic/scholarly texts & opinions
ENGLISH LAW Peninsular Malaysia – English Common Law & Rules of Equity as administered in England until 7 April 1956 Sabah – English Common Law, Rules of Equity & Statutes of General Application as administered in England until 1 Dec 1951 Sarawak – English Common Law, Rules of Equity & Statutes of General Application as administered in England until 12 Dec 1949 By virtue of Section 3 Civil Law Act 1956
John Salmond “The importance of judicial precedents has always been a distinguishing characteristic of English law [...] In practice, if not in theory, the common law of England has been manufactured by the decision of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent” John Salmond quoted in James W Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (John Hopkins University Press 2000) 179
JUDICIAL PRECEDENTS Application of common law doctrine of “stare decisis” (binding precedents) comprising TWO fundamental elements: 1. Inferior courts are bound by superior courts decisions in like cases; and 2. Superior courts are generally bound by their own decisions.
POSITION IN UK • UK courts are also bounded by stare decisis unlike their other European counterparts who are guided, rather than bounded, by judicial precedents
ADVANTAGES & DISADVANTAGES OF JUDICIAL PRECEDENT Advantages • Certainty in law; by looking at existing precedents • Uniformity in law; similar cases treated in same way • Flexible; several ways to avoid precedents & enables adaptation to changes • Practical; based on real facts • Detailed; wealth of cases Disadvantages • Certain precedents being irrelevant in today’s circumstances • Slow in respond to community changes • Complex; too much case law
READ TO IMPRESS 1. The United Arab Emirates Portal (2020) 'Mixed Legal System'. Available at: https://www.government.ae/en/about-the-uae/the- uae-government/the-federal-judiciary (Accessed 28 January 2020). 2. Shoeb Saher (2020) 'Key Distinctions in the Legal Landscape between UAE and India that Indian Investors in the UAE Need to Understand When Considering Investing', Legal Framework, 1 June 2018. Available at: http://www.shoebsaher.com/key- distinctions-in-the-legal-landscape-between-uae-and- india-that-indian-investors-in-the-uae-need-to- understand-when-considering-investing/ (Accessed 28 January 2020).
SOURCES OF MALAYSIAN LAW
SHARIA’ LAW • Islam is the official religion of Federation; Art. 3 of FC • Sharia’ law is applied to Muslims in areas designated by Constitution in Schedule 9, Lists I & II • Powers to enact legislation are given to State Assemblies & Parliament ADAT • Applicable to Malays and natives of Sabah & Sarawak • Art. 160 (2) of FC – Definitions of law • Customs are not law per se; it shall obtain status of law if given kiss of life by legislation or precedents
ADAT TEMENGGUNG • Practised by other states notably Johor • Originated from Palembang, Sumatera • Patrilineal system ADAT PERPATIH • Practiced in Negeri Sembilan and some parts in Malacca (Naning) • Oversee matters e.g. land tenure, lineage, election of lembaga, undang & Yand di- Pertuan Besar • Matrilineal system
HINDU CUSTOMS • Islam is the official religion of Federation; Art. 3 of FC • Sharia’ law is applied to Muslims in areas designated by Constitution in Schedule 9, Lists I & II • Powers to enact legislation are given to State Assemblies & Parliament CHINESE CUSTOMS • Applicable to Malays and natives of Sabah & Sarawak • Art. 160 (2) of FC – Definitions of law • Customs are not law per se; it shall obtain status of law if given kiss of life by legislation or precedents
CUSTOMS OF NATIVES • Involves land dealings e.g. native customary lands, family etc
ISLAM AS STATE RELIGION Islamic Vs Secular State Art. 121 (1A) – Jurisdiction Of Civil And Sharia’ Courts Freedom Of Religion In General Apostasy
Malay-Muslim Response Demonisation of Islam Wrongdoings by individual Muslims are immediately attributed to Islam while Judaism & Christianity are not blamed – rightly so when atrocities are committed by Israelis, Americans, Europeans and Australians
War Against Terrorism • Degenerated into war against Muslims and Islam Muslim-haters Lionised • Anyone who attacks Islam is immediately rewarded, honoured and lionised • Arield Sharon, the Butcher of Beirut and indicted war criminal is anointed “man of peace”
Indifference To Muslim Suffering • Horrors of Palestine, Sabra, Shatilla, Jenin, Iraq, Afghanistan and Lebanon failed to stir conscience of many people • Much of non-Muslim world remains silent New Crusade • New crusade against Muslims • Muslims being demolished within their own citadels e.g. destruction of cultural and religious artifacts in Baghdad’s Museum, “ethic cleansing” in Balkans etc
Recolonisation • Plunder of Iraq, occupation of Afghan and Libya, presence of US forces in Saudi Arabia, Kuwait etc, constant military threats against Syria and Iran – gives impression that conquest and colonisation of Muslim nations is now a strategic policy of US, UK and Australia Aggressive Proselytisation • Money incentives to wage aggressive attempt to convert Muslims • Rising tremendously after fall of Saddam Hussein in Iraq and Suharto in Indonesia • Even in Malaysia, constitutional ban in Art.11 (4) is not effective in deterring evangelical groups from remaining active within Muslim community
ISLAMIC VS SECULAR STATE Secular Features • Art. 4 (1) – supremacy of FC over all laws • Che Omar Che Soh (1988) Tun Salleh; Sharia’ is not the basic law of Malaysia and the FC is paramount Islamic Features • Plenty in FC to suggest Malaysia is, at least partly, an Islamic State: ✓ Art. 3 – Islam as official religion ✓ Art. 12 (2) – establishment or maintenance of Islamic institutions, provide instruction to Muslims, incur expenditures etc ✓ Islamic courts can be established and Sharia’ official can be hired ✓ Protection of jurisdiction of Sharia’ courts – Art. 121 (1A) ✓ Art. 11 (4) – constitutional restriction against propagation to Muslims ✓ State enactments can enforce morality amongst Muslims ✓ Item 1 List II of Ninth Schedule permits state legislation to create and punish offenses against Maqasid As Sharia’ (Pillars of Islam) committed by Muslims
ISLAMIC VS SECULAR STATE Freedom of Religion • Art. 11 – Every citizen of Malaysia has right to profess, practice and subject to (4); to propagate • A pre-Merdeka compromise between Muslims and non-Muslims that the latter shall not propagate to Muslims • Dishonoured by some evangelical group; mainly due to competition between dakwah and evangelical • Case law: Moorthy, Shamala, Lina Joy etc Apostasy • Involves difficult considerations: ✓ Political dimension – decline in number of Muslims = decline in number of Malays ✓ Social, economic and personal dimension – a Muslim apostate will lose his “Malay” status, marriage will be dissolved, inheritance, custody, guardianship issues, Malay reserved land etc ✓ Constitutional dimension – no unilateral conversion/renunciation, must apply for certificate from Sharia’ courts ✓ International dimension – Art. 18 of Universal Declaration of Human Rights ✓ Religious dimension – whether apostasy is a sin? ✓ Maslahah (Public interest)
COURT SYSTEM IN MALAYSIA
FUNCTIONS OF JUDICIARY Adjudicatory Role Penal Function Enforcing Constitutional Supremacy Judicial Review In Administrative Laws Balance Wheel Of Federalism
FUNCTIONS OF JUDICIARY Safeguarding Human Rights (14-22, 119, 128, 135, 147, 151) Interpreting Laws Government Proceedings Import Of British Law
UPHOLDING THE DOCTRINE OF SEPARATION OF POWERS PP V Kok Wah Kuan • D (12 years 9 months) charged & convicted for murder • Detained at pleasure of YDPA pursuant to Sec.97(2) Childs Act 2001 • Appeal at COA; conviction upheld but sentence was set aside • Released from custody on ground of unconstitutionality of Sec.97(2) Childs Act 2001 as follows: • Doctrine of separation of powers- judicial power is vested in court • Sec.97(2) consign power to determine measure of sentence to YDPA • YDPA is head of executive (Art.39 FC) & must act in accordance to advice given by Cabinet (Art.40 FC) • Hence, Sec.97(2) contravenes doctrine of separation of powers • PP appealed to Federal Court • Federal Court: appeal allowed as doctrine is not part of FC though it bears significance • No provision of law is unconstitutional just because it contravene the doctrine
MAGISTRATE COURT CIVIL JURISDICTION • Amount in dispute is ≤RM25,000 • If amount is ≤RM5,000, may file claims in “Small Claim” division of Magistrate Court and represent own self as legal representation is not allowed (heard by Second Class Magistrate) CRIMINAL JURISDICTION • If offence is punishable by fine only e.g. majority of traffic offences • If offence provides imprisonment not exceeding 10 years; but a Magistrate cannot impose imprisonment more than 5 years
SESSIONS COURT CIVIL JURISDICTION • Any civil matters involving motor vehicle accidents, disputes between landlord- tenants, and distress actions • Any matters which amount in dispute is ≤RM250,000 CRIMINAL JURISDICTION • All criminal offences EXCEPT those punishable by death
HIGH COURT CIVIL JURISDICTION • Any civil matters but generally to matters in which Magistrate & Session Courts have no jurisdiction e.g. bankruptcy, divorce & matrimonial cases, appointment of guardians for infants, granting of probate of wills & testaments & letters of administration of estate of deceased persons • Any matters which amount in dispute is ≥RM250,000 CRIMINAL JURISDICTION • All criminal matters but generally to matters in which Magistrate & Session Courts have no jurisdiction i.e. offences which carry death penalty APPELLATE JURISDICTION • Hear appeals from Magistrate/Sessions Court in both civil & criminal matters
COURT OF APPEAL • Hear appeals from High Court in both civil & criminal matters FEDERAL COURT • Hear appeals from Court of Appeal in both civil & criminal matters
SPECIAL COURTS • Solely to hear & try cases brought by or against YDPA or Ruler of State • Legal suits may only be initiated against YDPA or Ruler of State in their personal capacity ONLY • Composition (Art.182 FC) ▪ Chief Justice of Federal Court ▪ Chief Judges of High Courts ▪ 2 other persons (be them Federal Court or High Court judges)
Faridah Begum bte Abdullah v Sultan Haji Ahmad Shah (1996) 1 MLJ 617 • P, a Singapore citizen, sued Sultan of Pahang in his personal capacity for alleged libel and for damages • Issue: Whether P, being a non-Malaysian, had the right to sue the Sultan in his personal capacity? • Court: P had no right to sue. Also, under the Singaporean Constitution, a Malaysian could not sue President or the Republic in any Singapore Court so it was not too difficult to see why a Singaporean ought not to be conferred the right to sue the Sultan in this case
NATIVE COURTS Sabah • Hierarchy: ▪Native Court ▪District Native Court ▪Native Court of Appeal • Consist of THREE (3) Native Chiefs Sarawak • Hierarchy: • Headman’s Court (a Headman & 2 assessors) • Chief’s Court (a Penghulu & 2 assessors) • Chief’s Superior Court (a Temenggong/Pemancar & 2 assessors) • District Native Court (a Magistrate & 2 assessors) • Resident’s Native Court (a Resident & 2 or 4 assessors) • Native Court of Appeal (a Judge & 1 or more assessors)
JURISDICTIONS Sabah • Breach of native law • Matrimony, religion or sex • Betrothal, marriage, divorce, nullity of marriage, judicial separation • Adoption, guardianship or custody of infants, maintenance of dependants & legitimacy • Succession testate or intestate • *No jurisdiction over matters within purview of Sharia’ or Civil Courts Sarawak • Same • Civil matters which subject matter value is ≤RM2,000 & where all parties are subjected to same native law • Minor criminal case according to Adat Iban
COURT FOR CHILDREN (JUVENILE COURT) • Established under Child Act 2001 to replace Juvenile Court • Sec.2 Child Act 2001; a “child” means a person under 18 years & has attained age of criminal responsibility as per Sec.82 Penal Code (i.e. a child below 10 has no capacity to commit any offence) • Composition: ▪ A Magistrate ▪ Two (2) advisers appointed by Minister; one (1) must be a woman
PROTECTION TO CHILD OFFENDERS… Sec.12 Child Act 2001 ▪ Members & officers of Court ▪ Children who are parties to case ▪ Other person as determined by Court Sec.15 Child Act 2001 • Restrictions on media: ▪ Non disclosure of name, address, or educational institutions
INDEPENDENT JUDICIARY • Judges enjoy special safeguards in matters of appointment and dismissal e.g. terms & conditions of their service cannot be altered to their detriment • Insulated from politics • Possess power to punish for contempt of court • Enjoy absolute immunity in performance of their functions
ALTERNATIVE DISPUTE RESOLUTION (ADR) ADR Mediation Conciliation Adjudication Arbitration Save time, resolve dispute in confidence & no ill-will Not necessarily coming in cheap
MEDIATION • Existing in teachings of Islam, Hinduism, Buddhism, Christianity & even Confucius • Evidenced in rural Malaysian practices by determination of dispute by ‘Penghulu’ • Still in its infant stage • Facilitated statutory mediation: ❑ Persatuan Insurans Am Malaysia (PIAM) ❑ Banking Mediation Bureau (BMB) ❑ Housing Buyers Tribunal (HBT) ❑ Tribunal for Consumer Claims (CCM)
ARBITRATION • Definition of arbitration agreement: “a written agreement to submit present or future differences to arbitration, whether an arbitrator is named herein or not” • Does not automatically oust jurisdiction of courts i.e. party may freely file an action in court notwithstanding existence of any arbitration clause in agreement/contract • Once filed, court will generally grant a stay in proceedings pending arbitration • Governed by: ▪ Arbitration Act 1952 – applicable to domestic & international disputes; in pari materia with English Arbitration Act 1950 ▪ Arbitration Act 2005 (based on UNICITRAL model law on international commercial arbitration& repealed Arbitration Act 1952)
KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION (KLRCA) • A well-known arbitration centre • Facilitate local, regional and international arbitrations • Has its own set of arbitration rules • Opting for KLRCA would produce interesting consequences (subjected to personal opinions of course) e.g. any arbitration held under KLRCA Rules or UNCITRAL shall not be subjected to supervision of courts (Sec.34); and party is not allowed to seek interim relief from court • H/ever, this status has been changed in … Thye Hin Enterprise v Daimler Crysler Msia Sdn Bhd [2005] MLJ 293 • Parties were in a dealership agreement • Dispute arose - referred to KLRCA • A seeked from Court an interim injuction to preserve status quo pending arbitration • High Court dismissed application • COA held grant of interim relief is not prohibited by Sec.34
ADJUDICATION • Currently gain prominence in construction industry e.g. joint effort between government ministries & Construction Industry Development Board (CIDB) • Quite a new concept in Malaysia • Involves a 3rd party making a decision in the midst of a project pending completion of works • Useful as once project is successfully completed, most of the intermediate grievances are forgotten • Enables parties to have a binding decision until they can litigate their dispute properly
BASIC TERMINOLOGY IN LAW – Stare decisis – Binding precedent or to stand by things decided – Res judicata – final order of the court binding the immediate parties to the decision – Ratio decidendi – the reason for the decision – Obiter dictum (sayings by the way) – no binding power, although it can exercise an extremely strong influence in a lower court, and even in a court of equivalent standing, depending on the court and the judge
ASSIGNMENT 1. Define what do you understand about the notion of “law”. (10 marks) 2. Explain what are the sources of Malaysian law? Support your answers with relevant information, statutes, and cases (if any) (20 marks) 3. Compare and contrast the conventional legal system with that of Sharia’ (20 marks) *Due date: Wednesday 8th MARCH 2017
POSSIBLE TOPICS FOR ARTICLE WRITING • The Various Rule of Interpretation of Laws; An Introduction • Conventional vs Sharia’ Court; A Look From Malaysian Perspectives • Uncertainty According to Islamic Contract; How Far Is It Applicable • Strict Liability in Torts • The Concept of Maqasid As Sharia in Islamic Financial Transactions • The Rights of Bankers and Customers; A Comparative View • The Concept of Waqala in Agency Contract • Insurance v Takaful; How the Latter Fares So Far In Terms of Compliance With the Sharia’

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TOPIC 1 - INTRODUCTION TO LEGAL SYSTEM.pdf

  • 1.
    INTRODUCTION TO LAW& THE LEGAL SYSTEM
  • 2.
  • 3.
    CONTENTS ▪ Singularly Defined? -Defining ‘Law’ - Through Jurists Eyeglasses ▪ Law & Justice ▪ Law & Ethics ▪ Rule of Law ▪ Types of Law - Common Law & Equity - Statute Law - Public Law & Private Law - Civil Law & Criminal Law ▪ Other Types of Law
  • 4.
    Singularly Defined? ◦ No singledefinition ◦ Variable, e.g. Banking, Criminal, Constitutional law ◦ Descriptive law v Prescriptive law ◦ A force & coercion ◦ A limitation of freedoms ◦ A device to regulate economic & social behaviour ◦ A morality? ◦ Scholarly views?
  • 5.
    Descriptive Law • Describehow people or natural phenomena normally behave e.g. law of gravity, law of nature, law of economics and etc. Prescriptive Law • Prescribe how people should behave e.g. speed limits.
  • 6.
    DEFINING ‘LAW’ ❑ SirJohn Salmond in Jurisprudence: “the body of principles recognized and applied by the State in the administration of justice…” ❑ John Austin in The Province of Jurisprudence Determined: “a command set by a superior being to an inferior being and enforced by sanctions (punishments)” ❑ Article 160 of Federal Constitution: “Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof..
  • 7.
  • 8.
    THROUGH THE JURISTS EYEGLASSES ◦ JohnLocke: ✓ A condition wherein all power & authorities is reciprocal/shared, no one having more than the other ✓ Equality in authority ✓ Prohibition of any subordination or subjection of one person to another ✓ Equality…not merely before legislators, judges and police but far more crucially, equality with legislators, judges and police
  • 9.
    Definition of Justice Maximum happiness for maximumnumber of people (Bentham & Mill) e.g. law during Japanese occupancy in Malaya brought dismay than happiness Correct application of law as opposed to arbitrariness (Ross) i.e. decision made is based on rule of law and evidence, not by mere personal suspicion or opinion Virtue which results in each person receiving his due (Justinian) Impartial resolution of dispute (Curzon) i.e. non-discrimination LAW & JUSTICE
  • 10.
    John Rawl’s FOUR(4) Characteristics of Justice Universal i.e. belonging to all & affecting all Made public i.e. gazetted Final i.e. not volatile or prone to change Must decide between competing interest
  • 11.
    LAW & ETHICS ◦Mixture of Greek’s “ethos” (character) and Latin’s “mores” (customs) ❑ Defines what is good for individual-society & establishes duties people owe themselves & one another ❑ Examples of codes of ethics/conduct?
  • 12.
    RULE OF LAW ❑According to Dicey, rule of law involves three propositions: i. No person must be punished except for a breach of the law. ii. All persons are equal before the law irrespective of status or position. iii. Rights or freedoms of citizens are enforceable in the courts.
  • 13.
  • 14.
    Legal Positivism “Law properly,is the word of him, that by right hath command over others” Thomas Hobbes (1588-1679)
  • 15.
    Natural Law “...the highestreason, implanted in nature, which commands what ought to be done and forbids the opposite” Marcus Cicero “...every human law has just so much of the nature of law, as it is derived from the law of nature...to be genuine law, in other words, positive law must resemble the law of nature by being good – or at least by not being bad” St Thomas Aquinas
  • 16.
    American Legal Realism “...behaviour ofpublic officials (mainly judges) as they deal with matters before the legal system” American legal realist
  • 17.
    TYPES OF LAW a)Common Law & Equity b) Statute Law c) Public Law & Private Law d) Civil Law & Criminal Law
  • 18.
    1 - COMMON LAW& EQUITY Common Law ➢Law made by judges, who followed decision of other judges – a doctrine formalized later as stare decisis ➢Remedial aim – Monetary (Damages) Equity ➢Developed 200-300 years by Courts of Chancery after common law ➢Supplement (but not replace) common law ➢Remedial aim – A solution (fairness) where damages fail as ideal remedy
  • 20.
    2 – STATUTE LAW ➢A.k.a. Acts of Parliament ➢ Developed by Congress, Federal or State Parliament ➢ Specific & detailed but time-consuming (from developmental stage to amendment or termination)
  • 21.
    3 – PUBLICLAW & PRIVATE LAW
  • 22.
    4 – CIVILLAW & CRIMINAL LAW • Civil Law • Proven on balance of probability (by Claimant) • No punishment; compensation paid to innocent party • Criminal Law • Proven beyond reasonable doubt (by Prosecutor) • Punished with fines, imprisonment or community-based punishment
  • 23.
    OTHER TYPES OF LAW a)Customary Law b) Religious Law c) Regional Law d) International Law
  • 24.
    CUSTOMARY LAW ◦ Definition ◦ Typeof Customs: i. General/Common ii. Local ◦ Case: Egerton v Harding 1974 ➢ Parties owned & occupied land adjoining in common ➢ D’s cattle strayed into garden of P ➢ P claimed D should reimburse her for damage caused & it was local custom to fence one’s land ➢ Case: Kiah v Som [1953] 1 MLJ 82
  • 25.
    RELIGIOUS LAW ◦ Divinelaw ◦ Common associated with law of God e.g.~ ❖ Islamic/Shariah Law ❖ Christianity Law ❖ Jewish/Talmudic Law ❖ Hindu Law
  • 26.
    REGIONAL LAW ◦ Definition? ◦ Lawoperating within a State ◦ E.g.~ Conflict of jurisdiction i.e. which State shall have the right of jurisdiction over a certain dispute if it involves several sovereign States
  • 27.
    INTERNATIONAL LAW ◦ Regulates diplomaticrelations between States ◦ No single authority adjudicating laws that bind other States, i.e. no world government ◦ Methods of creating International Law: ✓ Treaties ✓ Custom Effect of International Law? Is it binding per se?
  • 28.
    INTERNATIONAL LAW ◦ In mostlegal system, national law overrides international law ◦ Akin to “A light that does not shine and a fire that does not glow” ◦ Not mentioned in definitions of law in Art.160 (2) of FC ◦ However, there are samples of legislations which had assimilated international principles e.g. Copyright Act 1987 (the Berne Convention), Human Rights Commission Act 1999 (the Universal Declaration of Human Rights 1948)
  • 29.
    SOURCES OF LAW– MALAYSIA
  • 30.
  • 31.
    WRITTEN LAW Composition • FederalConstitution • State Constitution • Subsidiary legislation made by persons or bodies under powers conferred on them A.k.a. statutory law
  • 32.
    WRITTEN & UNWRITTENLAW Unwritten Defined in abstract sense E.g. Constitution of United Kingdom Defined in concrete sense E.g. Constitution of Malaysia Written
  • 33.
    HISTORICAL DOCUMENTS MacMichael Treaties (1945) TheMalayan Union Proposals (1946) The Federation of Malaya Agreement (1948) The Reid Commission Report (1957) The Federation of Malaya Constitutional Proposals (1957) The Cobbold Commission Report (1962) The Malaysia Agreement (1963) The Twenty Points Declaration (1963) The Rukun Negara (1970)
  • 34.
    RULES OF INTERPRETATION Mischief Rule/ Heydon’s case Literal/ Plain Meaning Rule Golden Rule Contextual Approach Courts assume that meaning & intention of law is clear in the statute If Literal Rule leads to absurdity; which Parliament couldn’t have intended, Court may substitute a reasonable meaning in light of the Statute as a whole e.g. rule on clothing @ XMU Courts shall consider 3 factors i.e. what was the law before Statute passed, mischief which Statute aimed to remedy, and what remedy Parliament tried to provide (lacked popularity) Words to be interpreted w/in context of statute as a whole e.g. “other animal” preceded by cats, dogs, guinea pigs; the former shall be understood as domestic animals
  • 35.
    Contextual Approach • Flack vBaldry (1988) • Electric shock from a stun gun was well w/in definition of “any noxious liquid, gas or other thing” under Firearms Act1968 Golden Rule • Smith v Hughes (1960) • A prostitute was prosecuted for “soliciting in the street” when in fact she solicited from her balcony • Purpose of law was to prevent annoyance to public from such activities so prostitute as held to be guilty
  • 36.
    The Law-Making Process inthe Parliament ❑ Involves both the House of Representatives (Dewan Rakyat) and Senate (Dewan Negara) ❑ Not limited to law-making only; but also amending and termination of laws
  • 37.
    THE FEDERAL CONSTITUTION •Supreme law of Malaysia/Grundnorm • Art. 4 of FC • Art. 162 (6) of FC - • Any law that conflicts FC is VOID to the extent of inconsistency • Supremacy is maintained by giving superior courts judicial review i.e. power to invalidate any legislative or executive act that violates FC
  • 38.
  • 39.
    STATE CONSTITUTIONS • EachState possesses basic charter of its own • Art. 71 (4) of FC requires for State Constitution to contain certain essential provisions e.g. Rulers to act on advice, existence of Executive Council, or an elected state legislature
  • 40.
    FEDERAL LEGISLATION • Knownas “Ordinance” in 1946-1957; currently “Act of Parliament” • E.g. Internal Security Act 1960, Dangerous Drugs (Special Preventive Measures) Act 1985, Emergency (Essential Powers) Act 1979 • Parliament can legislate on 27 topics in Federal List & 12 topics in Concurrent List
  • 41.
    STATE LEGISLATION • StateAssembly has power to frame enactments on 13 topics in State List & 12 topics in Concurrent List • Power to amend State Constitution • Subjected to Federal Constitution
  • 42.
    SUBSIDIARY/DELEGATED LEGISLATION • Sec. 3Interpretation Act 1948 and 1967 “…any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect.” • Legislations made outside legislative halls by delegates i.e. the executives which reflects government’s increased role in administration • Contravenes the doctrine of separation of powers & vulnerable to abuse • Limited to subject matter authorised only • Open to review by courts • E.g. By-Laws (Municipal Council), Merchant Shipping Act (provide Marine Dept to issue licences & permits to boats, ships, tanker etc)
  • 43.
    RATIONALES OF SUBSIDIARYLEGISLATION • Legislature has insufficient time to enact all legislation, detailed in every aspects, required in a modern society • Much modern legislation is highly technical and is best left to experts or administrators on the job who are well versed with the technical aspects to enact it • Legislature is not continuously in session and its legislative procedures are burdensome • Some laws need to be made/amend/repeal quickly to address certain urgent issues
  • 44.
    CONTROLS OVER SUBSIDIARYLEGISLATION Judicial Control • Most important • Sec. 23(1) and 87(d) of Interpretation Act 1948 and 1967; any SL which is inconsistent with any Act of Parliament or State Constitution shall be void • Controlled by courts via judicial review • Two (2) types of ultra vires: i. Substantive – SL was made beyond limits of powers conferred ii. Procedural - failure to adhere to mandatory procedure Legislative Control • Direct control by Parliament • Presence of ‘Parent statute’ requiring SL to be laid before the Parliament either for confirmation or mere information • E.g. Trade Marks Act 1976, Trade Unions Act 1959 • Establishment of Scrutiny Committee (yet to be established in Malaysia)
  • 45.
    OTHER CONTROLS Consultation • Nogeneral statutory provision • Few numbers of enabling Act which make consultation mandatory. H/ever, this has normally been conducted but rather on ad-hoc or voluntary basis • E.g. Central Bank Act 2009 which requires consultation to be made with Sharia’ Advisory Council of BNM in matters pertaining to Sharia’ or Islamic finance Publication • No general statutory provision • No mandatory requirement for publication but if enabling Act puts it so, then failure to comply shall result in such SL be void • E.g. publications of By-Laws
  • 46.
  • 47.
    • Found inspecially formulated document • Grundnorm (highest law of land/law of laws) • Its supremacy is protected by “judicial review” – power of courts to invalidate executive & legislative actions on ground of unconstitutionality • Its principles are “entrenched” i.e. difficult to enact, amend or repeal • Ordinary law vs Constitution • Constitution is supreme; not the Parliament • Rigid Written • Not reduced to single document – its sources are written & unwritten, legal & non-legal etc • The Constitution is “scattered, heterogeneous and elusive” • No distinction between constitutional law & ordinary law for purpose of enactment, amendment or repeal • No judicial review of Statutes/Acts of Parliament • Parliament is supreme; not the Constitution • Flexible Unwritten
  • 48.
    Historical documents e.g. MagnaCarta 1611, Petition of Rights 1628, Bill of Rights 1689 Common law (judge- made laws/judicial precedents) Law & customs of Parliament Non-ratified international treaties e.g. European Convention on Human Rights Constitutional conventions (customs of constitution) Statutes e.g. Act of Settlement 1700 Delegated legislation Community law (law of the European Union) Juristic/scholarly texts & opinions
  • 49.
    ENGLISH LAW Peninsular Malaysia– English Common Law & Rules of Equity as administered in England until 7 April 1956 Sabah – English Common Law, Rules of Equity & Statutes of General Application as administered in England until 1 Dec 1951 Sarawak – English Common Law, Rules of Equity & Statutes of General Application as administered in England until 12 Dec 1949 By virtue of Section 3 Civil Law Act 1956
  • 50.
    John Salmond “The importanceof judicial precedents has always been a distinguishing characteristic of English law [...] In practice, if not in theory, the common law of England has been manufactured by the decision of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent” John Salmond quoted in James W Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (John Hopkins University Press 2000) 179
  • 51.
    JUDICIAL PRECEDENTS Application ofcommon law doctrine of “stare decisis” (binding precedents) comprising TWO fundamental elements: 1. Inferior courts are bound by superior courts decisions in like cases; and 2. Superior courts are generally bound by their own decisions.
  • 52.
    POSITION IN UK •UK courts are also bounded by stare decisis unlike their other European counterparts who are guided, rather than bounded, by judicial precedents
  • 53.
    ADVANTAGES & DISADVANTAGESOF JUDICIAL PRECEDENT Advantages • Certainty in law; by looking at existing precedents • Uniformity in law; similar cases treated in same way • Flexible; several ways to avoid precedents & enables adaptation to changes • Practical; based on real facts • Detailed; wealth of cases Disadvantages • Certain precedents being irrelevant in today’s circumstances • Slow in respond to community changes • Complex; too much case law
  • 54.
    READ TO IMPRESS 1.The United Arab Emirates Portal (2020) 'Mixed Legal System'. Available at: https://www.government.ae/en/about-the-uae/the- uae-government/the-federal-judiciary (Accessed 28 January 2020). 2. Shoeb Saher (2020) 'Key Distinctions in the Legal Landscape between UAE and India that Indian Investors in the UAE Need to Understand When Considering Investing', Legal Framework, 1 June 2018. Available at: http://www.shoebsaher.com/key- distinctions-in-the-legal-landscape-between-uae-and- india-that-indian-investors-in-the-uae-need-to- understand-when-considering-investing/ (Accessed 28 January 2020).
  • 55.
  • 56.
    SHARIA’ LAW • Islamis the official religion of Federation; Art. 3 of FC • Sharia’ law is applied to Muslims in areas designated by Constitution in Schedule 9, Lists I & II • Powers to enact legislation are given to State Assemblies & Parliament ADAT • Applicable to Malays and natives of Sabah & Sarawak • Art. 160 (2) of FC – Definitions of law • Customs are not law per se; it shall obtain status of law if given kiss of life by legislation or precedents
  • 57.
    ADAT TEMENGGUNG • Practisedby other states notably Johor • Originated from Palembang, Sumatera • Patrilineal system ADAT PERPATIH • Practiced in Negeri Sembilan and some parts in Malacca (Naning) • Oversee matters e.g. land tenure, lineage, election of lembaga, undang & Yand di- Pertuan Besar • Matrilineal system
  • 58.
    HINDU CUSTOMS • Islamis the official religion of Federation; Art. 3 of FC • Sharia’ law is applied to Muslims in areas designated by Constitution in Schedule 9, Lists I & II • Powers to enact legislation are given to State Assemblies & Parliament CHINESE CUSTOMS • Applicable to Malays and natives of Sabah & Sarawak • Art. 160 (2) of FC – Definitions of law • Customs are not law per se; it shall obtain status of law if given kiss of life by legislation or precedents
  • 59.
    CUSTOMS OF NATIVES •Involves land dealings e.g. native customary lands, family etc
  • 60.
    ISLAM AS STATERELIGION Islamic Vs Secular State Art. 121 (1A) – Jurisdiction Of Civil And Sharia’ Courts Freedom Of Religion In General Apostasy
  • 61.
    Malay-Muslim Response Demonisation ofIslam Wrongdoings by individual Muslims are immediately attributed to Islam while Judaism & Christianity are not blamed – rightly so when atrocities are committed by Israelis, Americans, Europeans and Australians
  • 63.
    War Against Terrorism •Degenerated into war against Muslims and Islam Muslim-haters Lionised • Anyone who attacks Islam is immediately rewarded, honoured and lionised • Arield Sharon, the Butcher of Beirut and indicted war criminal is anointed “man of peace”
  • 64.
    Indifference To Muslim Suffering •Horrors of Palestine, Sabra, Shatilla, Jenin, Iraq, Afghanistan and Lebanon failed to stir conscience of many people • Much of non-Muslim world remains silent New Crusade • New crusade against Muslims • Muslims being demolished within their own citadels e.g. destruction of cultural and religious artifacts in Baghdad’s Museum, “ethic cleansing” in Balkans etc
  • 65.
    Recolonisation • Plunder ofIraq, occupation of Afghan and Libya, presence of US forces in Saudi Arabia, Kuwait etc, constant military threats against Syria and Iran – gives impression that conquest and colonisation of Muslim nations is now a strategic policy of US, UK and Australia Aggressive Proselytisation • Money incentives to wage aggressive attempt to convert Muslims • Rising tremendously after fall of Saddam Hussein in Iraq and Suharto in Indonesia • Even in Malaysia, constitutional ban in Art.11 (4) is not effective in deterring evangelical groups from remaining active within Muslim community
  • 67.
    ISLAMIC VS SECULARSTATE Secular Features • Art. 4 (1) – supremacy of FC over all laws • Che Omar Che Soh (1988) Tun Salleh; Sharia’ is not the basic law of Malaysia and the FC is paramount Islamic Features • Plenty in FC to suggest Malaysia is, at least partly, an Islamic State: ✓ Art. 3 – Islam as official religion ✓ Art. 12 (2) – establishment or maintenance of Islamic institutions, provide instruction to Muslims, incur expenditures etc ✓ Islamic courts can be established and Sharia’ official can be hired ✓ Protection of jurisdiction of Sharia’ courts – Art. 121 (1A) ✓ Art. 11 (4) – constitutional restriction against propagation to Muslims ✓ State enactments can enforce morality amongst Muslims ✓ Item 1 List II of Ninth Schedule permits state legislation to create and punish offenses against Maqasid As Sharia’ (Pillars of Islam) committed by Muslims
  • 68.
    ISLAMIC VS SECULARSTATE Freedom of Religion • Art. 11 – Every citizen of Malaysia has right to profess, practice and subject to (4); to propagate • A pre-Merdeka compromise between Muslims and non-Muslims that the latter shall not propagate to Muslims • Dishonoured by some evangelical group; mainly due to competition between dakwah and evangelical • Case law: Moorthy, Shamala, Lina Joy etc Apostasy • Involves difficult considerations: ✓ Political dimension – decline in number of Muslims = decline in number of Malays ✓ Social, economic and personal dimension – a Muslim apostate will lose his “Malay” status, marriage will be dissolved, inheritance, custody, guardianship issues, Malay reserved land etc ✓ Constitutional dimension – no unilateral conversion/renunciation, must apply for certificate from Sharia’ courts ✓ International dimension – Art. 18 of Universal Declaration of Human Rights ✓ Religious dimension – whether apostasy is a sin? ✓ Maslahah (Public interest)
  • 69.
  • 70.
    FUNCTIONS OF JUDICIARY AdjudicatoryRole Penal Function Enforcing Constitutional Supremacy Judicial Review In Administrative Laws Balance Wheel Of Federalism
  • 71.
    FUNCTIONS OF JUDICIARY SafeguardingHuman Rights (14-22, 119, 128, 135, 147, 151) Interpreting Laws Government Proceedings Import Of British Law
  • 72.
    UPHOLDING THE DOCTRINEOF SEPARATION OF POWERS PP V Kok Wah Kuan • D (12 years 9 months) charged & convicted for murder • Detained at pleasure of YDPA pursuant to Sec.97(2) Childs Act 2001 • Appeal at COA; conviction upheld but sentence was set aside • Released from custody on ground of unconstitutionality of Sec.97(2) Childs Act 2001 as follows: • Doctrine of separation of powers- judicial power is vested in court • Sec.97(2) consign power to determine measure of sentence to YDPA • YDPA is head of executive (Art.39 FC) & must act in accordance to advice given by Cabinet (Art.40 FC) • Hence, Sec.97(2) contravenes doctrine of separation of powers • PP appealed to Federal Court • Federal Court: appeal allowed as doctrine is not part of FC though it bears significance • No provision of law is unconstitutional just because it contravene the doctrine
  • 73.
    MAGISTRATE COURT CIVIL JURISDICTION •Amount in dispute is ≤RM25,000 • If amount is ≤RM5,000, may file claims in “Small Claim” division of Magistrate Court and represent own self as legal representation is not allowed (heard by Second Class Magistrate) CRIMINAL JURISDICTION • If offence is punishable by fine only e.g. majority of traffic offences • If offence provides imprisonment not exceeding 10 years; but a Magistrate cannot impose imprisonment more than 5 years
  • 74.
    SESSIONS COURT CIVIL JURISDICTION •Any civil matters involving motor vehicle accidents, disputes between landlord- tenants, and distress actions • Any matters which amount in dispute is ≤RM250,000 CRIMINAL JURISDICTION • All criminal offences EXCEPT those punishable by death
  • 76.
    HIGH COURT CIVIL JURISDICTION •Any civil matters but generally to matters in which Magistrate & Session Courts have no jurisdiction e.g. bankruptcy, divorce & matrimonial cases, appointment of guardians for infants, granting of probate of wills & testaments & letters of administration of estate of deceased persons • Any matters which amount in dispute is ≥RM250,000 CRIMINAL JURISDICTION • All criminal matters but generally to matters in which Magistrate & Session Courts have no jurisdiction i.e. offences which carry death penalty APPELLATE JURISDICTION • Hear appeals from Magistrate/Sessions Court in both civil & criminal matters
  • 77.
    COURT OF APPEAL •Hear appeals from High Court in both civil & criminal matters FEDERAL COURT • Hear appeals from Court of Appeal in both civil & criminal matters
  • 78.
    SPECIAL COURTS • Solelyto hear & try cases brought by or against YDPA or Ruler of State • Legal suits may only be initiated against YDPA or Ruler of State in their personal capacity ONLY • Composition (Art.182 FC) ▪ Chief Justice of Federal Court ▪ Chief Judges of High Courts ▪ 2 other persons (be them Federal Court or High Court judges)
  • 79.
    Faridah Begum bteAbdullah v Sultan Haji Ahmad Shah (1996) 1 MLJ 617 • P, a Singapore citizen, sued Sultan of Pahang in his personal capacity for alleged libel and for damages • Issue: Whether P, being a non-Malaysian, had the right to sue the Sultan in his personal capacity? • Court: P had no right to sue. Also, under the Singaporean Constitution, a Malaysian could not sue President or the Republic in any Singapore Court so it was not too difficult to see why a Singaporean ought not to be conferred the right to sue the Sultan in this case
  • 80.
    NATIVE COURTS Sabah • Hierarchy: ▪NativeCourt ▪District Native Court ▪Native Court of Appeal • Consist of THREE (3) Native Chiefs Sarawak • Hierarchy: • Headman’s Court (a Headman & 2 assessors) • Chief’s Court (a Penghulu & 2 assessors) • Chief’s Superior Court (a Temenggong/Pemancar & 2 assessors) • District Native Court (a Magistrate & 2 assessors) • Resident’s Native Court (a Resident & 2 or 4 assessors) • Native Court of Appeal (a Judge & 1 or more assessors)
  • 81.
    JURISDICTIONS Sabah • Breach ofnative law • Matrimony, religion or sex • Betrothal, marriage, divorce, nullity of marriage, judicial separation • Adoption, guardianship or custody of infants, maintenance of dependants & legitimacy • Succession testate or intestate • *No jurisdiction over matters within purview of Sharia’ or Civil Courts Sarawak • Same • Civil matters which subject matter value is ≤RM2,000 & where all parties are subjected to same native law • Minor criminal case according to Adat Iban
  • 82.
    COURT FOR CHILDREN (JUVENILECOURT) • Established under Child Act 2001 to replace Juvenile Court • Sec.2 Child Act 2001; a “child” means a person under 18 years & has attained age of criminal responsibility as per Sec.82 Penal Code (i.e. a child below 10 has no capacity to commit any offence) • Composition: ▪ A Magistrate ▪ Two (2) advisers appointed by Minister; one (1) must be a woman
  • 83.
    PROTECTION TO CHILD OFFENDERS… Sec.12Child Act 2001 ▪ Members & officers of Court ▪ Children who are parties to case ▪ Other person as determined by Court Sec.15 Child Act 2001 • Restrictions on media: ▪ Non disclosure of name, address, or educational institutions
  • 84.
    INDEPENDENT JUDICIARY • Judgesenjoy special safeguards in matters of appointment and dismissal e.g. terms & conditions of their service cannot be altered to their detriment • Insulated from politics • Possess power to punish for contempt of court • Enjoy absolute immunity in performance of their functions
  • 86.
    ALTERNATIVE DISPUTE RESOLUTION (ADR) ADR Mediation Conciliation Adjudication Arbitration Savetime, resolve dispute in confidence & no ill-will Not necessarily coming in cheap
  • 87.
    MEDIATION • Existing inteachings of Islam, Hinduism, Buddhism, Christianity & even Confucius • Evidenced in rural Malaysian practices by determination of dispute by ‘Penghulu’ • Still in its infant stage • Facilitated statutory mediation: ❑ Persatuan Insurans Am Malaysia (PIAM) ❑ Banking Mediation Bureau (BMB) ❑ Housing Buyers Tribunal (HBT) ❑ Tribunal for Consumer Claims (CCM)
  • 88.
    ARBITRATION • Definition ofarbitration agreement: “a written agreement to submit present or future differences to arbitration, whether an arbitrator is named herein or not” • Does not automatically oust jurisdiction of courts i.e. party may freely file an action in court notwithstanding existence of any arbitration clause in agreement/contract • Once filed, court will generally grant a stay in proceedings pending arbitration • Governed by: ▪ Arbitration Act 1952 – applicable to domestic & international disputes; in pari materia with English Arbitration Act 1950 ▪ Arbitration Act 2005 (based on UNICITRAL model law on international commercial arbitration& repealed Arbitration Act 1952)
  • 89.
    KUALA LUMPUR REGIONALCENTRE FOR ARBITRATION (KLRCA) • A well-known arbitration centre • Facilitate local, regional and international arbitrations • Has its own set of arbitration rules • Opting for KLRCA would produce interesting consequences (subjected to personal opinions of course) e.g. any arbitration held under KLRCA Rules or UNCITRAL shall not be subjected to supervision of courts (Sec.34); and party is not allowed to seek interim relief from court • H/ever, this status has been changed in … Thye Hin Enterprise v Daimler Crysler Msia Sdn Bhd [2005] MLJ 293 • Parties were in a dealership agreement • Dispute arose - referred to KLRCA • A seeked from Court an interim injuction to preserve status quo pending arbitration • High Court dismissed application • COA held grant of interim relief is not prohibited by Sec.34
  • 91.
    ADJUDICATION • Currently gainprominence in construction industry e.g. joint effort between government ministries & Construction Industry Development Board (CIDB) • Quite a new concept in Malaysia • Involves a 3rd party making a decision in the midst of a project pending completion of works • Useful as once project is successfully completed, most of the intermediate grievances are forgotten • Enables parties to have a binding decision until they can litigate their dispute properly
  • 92.
    BASIC TERMINOLOGY INLAW – Stare decisis – Binding precedent or to stand by things decided – Res judicata – final order of the court binding the immediate parties to the decision – Ratio decidendi – the reason for the decision – Obiter dictum (sayings by the way) – no binding power, although it can exercise an extremely strong influence in a lower court, and even in a court of equivalent standing, depending on the court and the judge
  • 93.
    ASSIGNMENT 1. Define whatdo you understand about the notion of “law”. (10 marks) 2. Explain what are the sources of Malaysian law? Support your answers with relevant information, statutes, and cases (if any) (20 marks) 3. Compare and contrast the conventional legal system with that of Sharia’ (20 marks) *Due date: Wednesday 8th MARCH 2017
  • 94.
    POSSIBLE TOPICS FORARTICLE WRITING • The Various Rule of Interpretation of Laws; An Introduction • Conventional vs Sharia’ Court; A Look From Malaysian Perspectives • Uncertainty According to Islamic Contract; How Far Is It Applicable • Strict Liability in Torts • The Concept of Maqasid As Sharia in Islamic Financial Transactions • The Rights of Bankers and Customers; A Comparative View • The Concept of Waqala in Agency Contract • Insurance v Takaful; How the Latter Fares So Far In Terms of Compliance With the Sharia’