Malaysian legal system

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Malaysian legal system

  1. 1. ALIZAH ALI DEPT OF LAW UITM BANDARAYA CAMPUS hajah alizah haji ali 1
  2. 2. At the end of the class, student will able to understand the topics as follows;  Classification of law – public/international/private law  Sources of Malaysian Law – written/unwritten  Law process making  Court system in Malaysia hajah alizah haji ali 2
  3. 3. Rules and regulations. The body of enacted or customary rules recognized by a community as bindingOxford English Dictionary. The body of principles recognized and applied by the state in the administration of justiceJohn Salmond, Jurisprudence. hajah alizah haji ali 3
  4. 4. CLASSIFICATION OF LAW PUBLIC LAW Constitutional law Criminal law INTERNATIONAL LAW Public International law private International law PRIVATE LAW Contract hajah alizah haji ali Trust Tort 4
  5. 5. Public Law The law which governs the relationship between individuals and the State. Constitution al law Public law Criminal law hajah alizah haji ali 5
  6. 6. Constitutional Law Lays down the rights of individuals in the State e.g – rights of citizen Criminal Law Codifies the various offences committed by individuals against the State hajah alizah haji ali 6
  7. 7. International Law  Body of law and rules of conduct which States are bound to observe.  Can be created in two main ways: (i)By treaty;(ii)By custom  Public International Law International law Private International Law hajah alizah haji ali 7
  8. 8. Public International Law Law that prevails between States Private International Law It consists of the rules that guide a judge when the laws of more than one country affect a case (conflict of laws). hajah alizah haji ali 8
  9. 9.    civil law Law which affects the rights and duties of individuals amongst themselves intended to give compensation to person injured, to enable property to be recovered from wrongdoers and to enforce obligation hajah alizah haji ali 9
  10. 10. Contract Law agreement that have legal effect Trust An equitable obligation binding a person (trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries) Tort Based on an obligation imposed by law ie: negligence, defamation, assault, trespass hajah alizah haji ali 10
  11. 11. Meaning of the term sources: = legal rules that make up the law in Malaysia. Historical Sources Religious beliefs, local customs and opinion of jurists. Places where the law can be found Statutes, law reports, previous decisions of the courts and text books. hajah alizah haji ali 11
  12. 12. Sources of Malaysian law Unwritten law Written law Act / Federal / Enactmen State t/ Constitut Ordinance ion Subsidiary law English law Syariah law •Al-Quran •Hadith •Sunnah •Qiyas Judicial decision hajah alizah haji ali Customary law West Malaysia •Adat temenggong •Adat pepatih •Chinese&Hi ndu customary Law East Malaysia •Adat melayu •Adat bumiputra •Chinese •Hindu customary Law 12
  13. 13. WRITTEN LAW  Federal/State Constituition  Act/Enactment/Ordinance  Subsidiary Legislation hajah alizah haji ali 13
  14. 14.   The law that have been codified or recognized by the Federal and State Constitution. embodied in a code or statute including subsidiary or delegated legislation. hajah alizah haji ali 14
  15. 15. Supreme law of the land comprising 13 states the Federation. Laying down the powers of the Federal and State Governments and also enshrines the basic or fundamental rights of the individual. It was drafted by Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. hajah alizah haji ali 15
  16. 16. The Constitution come into force following the independence on August 31, 1957. AMMENDMEND This Constitution can only be amended by a two-thirds (2/3) majority of the total number of members of the legislature. hajah alizah haji ali 16
  17. 17. Each State possesses its own constitution regulating the government of that State, known as ENACTMENT. contains provisions which are enumerated in the Eight Schedule to the Federal Constitution E.g; matter discusse state executive members, finance, state legislative assembly, roles of the Sultan, etc) Article 75 of the Fed Cons-’If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void’. hajah alizah haji ali 17
  18. 18. Federal constitution Parliament Federal list State legislation Before independence State list Ordinance Concurrent list Act Concurrent list Sabah / Sarawak enactment During emergency Enactment hajah alizah haji ali 18
  19. 19. Subsidiary Legislation Legislation Law enacted by a body constituted for this purpose. Parliament at federal level and by the various State Legislative Assemblies at state level parliament Defined by 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’. hajah alizah haji ali 19
  20. 20. LAW MAKING PROCESS First reading - Dewan rakyat Minister formally introduce the bill by having its short title read 2nd reading – dewan rakyat Debate e bill & vote Committee stage – examine the bill, consider the amendment followed by a report & circulate to all members 3rd reading – dewan negara Same process with 2nd reading Amendment -suggest amendment to dewan rakyat Dewan rakyat may accept or reject the suggestion No amendment Art 66(3) FC; sent the bill to YDPA to get his assent Art 66 (4); YDPA must absent within 30 days Art 40 (1): YDPA act in accordance to the advice of cabinet Art 66 (5): gazette the bill before officially enforced hajah alizah haji ali 20
  21. 21. UNWRITTEN LAW  English Law  Syariah Law  Judicial Decision  Customary Law hajah alizah haji ali 21
  22. 22. convenient reference to that portion of Malaysian law which is not enacted by the legislature (Parliament and the State Assemblies) and which is not found in the Constitutions, both Federal and State. hajah alizah haji ali 22
  23. 23. 1. ENGLISH LAW Has been received in Msia and it is done either expressly or by implication. Section 3(1) of Civil Law Act 1956-Where the court is required to apply…… “(a) in West Msia or any part thereof…..the common law of England and the rules of equity as administered in England on the 7th of April 1956, (b) in Sabah….the common law of England and the rules of Equity, together with statutes of general application, as administered or in force in England on st of December, 1951 and (c) in Sarawak…...the the 1 common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th of December, 1949”. hajah alizah haji ali 23
  24. 24. Section 5 (1) CLA 1956- Application of English Law in commercial matters in the States of West Malaysia other than Malacca and Penang….’the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law’. Section 5 (2) CLA 1956- Application of English Law in commercial matters in the States of Malacca, Penang, Sabah and Sarawak….’the law to be administered shall be the same as would be administered in England, in the like case at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law’. hajah alizah haji ali 24
  25. 25.    As for English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs the land matters and there is no any allowance for English Land Law unless the national land code applies it for the judicial comity Refer to case UMBC v. PEMUNGUT HASIL TANAH KOTA TINGGI (1984) hajah alizah haji ali 25
  26. 26. 1. It is only applied in the absence of local statutes covering the same matter (only to fill in the lacuna in the local system) 2. Only that part of the English Law that is suited to the local circumstances will be applied. hajah alizah haji ali 26
  27. 27. Common Law-Also known as judge-made law. Refers to law laid down by judges sitting in the superior courts as distinct from statute law enacted by the legislature. Equity-Was introduced to reduce the harshness of common law. It was developed out of the need to provide the plaintiff with relief where the strict common law rules granted as an unsatisfactory remedy or no remedy at all. hajah alizah haji ali 27
  28. 28. Major source of Malaysian Law but only applicable to Muslims and enacted under the Federal Constitution. It is administered by a separate Shari’ah Courts. Article 3 of Fed Cons-Islam to be the religion of Malaysia but other religions may be practiced in peace and harmony. The state legislature have the power and permitted to make Islamic Laws pertaining to person professing the religion. Such law are administered by separate court system, Syariah Courts. State legislature also has the jurisdiction over the constitution, organization and procedures of syariah courts. Now Islamic laws are increasingly applied in banking and land laws other than applied to family and estate matters. hajah alizah haji ali 28
  29. 29.     Al-Quran Al-Hadith Ijma’ Ulama’ Qiyas hajah alizah haji ali 29
  30. 30. Case Law-Refers to past cases or case report eg: Malayan Law Journal and Current Law Journal. It refers to judicial decision of the court which is refer by the latter court as a guide to decide future case as similar facts and situation-Land mark to other cases. Case Law become as sources of law according to doctrine of binding judicial precedent/Doctrine of stare decisis. Precedents are the decisions made by judges previously in similar circumstances. hajah alizah haji ali 30
  31. 31. • • • Refers to norms, behaviors, practices and beliefs which is carried by one generation to another. It is not specific and may be different to one another. As a general rule, the customs of a local inhabitants relating to marriage, divorce and inheritance are given legal force by the courts and some are dealt with by certain specific enactments. Judicial recognition of customs is quite common in a country populated by variety of people with diverse culture and religious background. hajah alizah haji ali 31
  32. 32. WEST MALAYSIA • Adat Temenggung • Adat Pepatih • Chinese & Hindu customary Law EAST MALAYSIA  Adat Bumiputera  Chinese & Hindu customary Law hajah alizah haji ali 32
  33. 33.  ADMINISTRATION OF JUSTICE hajah alizah haji ali 33
  34. 34. Federal court High court of Malaya Subordinate court Sessions court Magistrates court High court of Borneo (Sabah & Sarawak) Superior court Court of appeal Sessions court Magistrates court Penghulu court Native court hajah alizah haji ali 34
  35. 35.  To hear civil and criminal determine appeals from decisions of the Court of Appeal and the High Court  To exercise its original jurisdiction. (e.g: Hear dispute on any matter between any State and Federal Government)  To determine constitutional questions  To give its opinion on any questions referred to it by the YDPA concerning the effect of any provision of the Constitution. hajah alizah haji ali 35
  36. 36.  To hear and determine any appeal against any High Court decision on criminal matters  To hear and determine any civil appeals generally for cases where the amount or value of the subject matter of the claim is at least RM250, 000. hajah alizah haji ali 36
  37. 37. 1. Original Jurisdiction  It has unlimited criminal and civil powers.  Any civil matters which cannot be determined in the subordinate courts is heard before the High Court. 2. Appellate Jurisdiction  Hears criminal and civil appeals from the Magistrates’ and Session Court. 3. general, supervisory and reversionary jurisdiction over all subordinate hajah alizah haji ali 37
  38. 38. 4. 5. 6. 7. validity/dissolution of marriage (nonmuslim) Bankruptcy / winding up companies guardianship / custody of children Grants of probates, wills, letter of administration 8. injunction, SP, rescission of contract 9. Matters relating to land 10. Auction and foreclosure hajah alizah haji ali 38
  39. 39.     Criminal Jurisdiction All offences other than offences punishable with death penalty Civil Jurisdiction Try all actions and suits of a civil nature where the amount of dispute or value of the subject matter does not exceed RM250, 000. Matters relating to road accident, landlords and tenants dispute. hajah alizah haji ali 39
  40. 40.       FIRST CLASS MAGISTRATE Criminal Jurisdiction Criminal offences for which the maximum term of punishment provided by the law does not exceed: ◦ 10 years’ imprisonment or ◦ all offences punishable with fine only ◦ Offences of robbery, lurking, house trespass or house breaking at night - Power to pass sentence: ◦ 5 years’ imprisonment ◦ a fine of RM10, 000 ◦ Whipping up to 12 strokes ◦ The combination of any of the above Civil Jurisdiction Try all actions and suits of a civil nature where the amount of dispute or value of the subject matter does not exceed RM25, 000. hajah alizah haji ali 40
  41. 41.       SECOND CLASS MAGISTRATE Criminal Jurisdiction - Criminal offences for which the maximum term of punishment provided by the law does not exceed: ◦ 12 months’ imprisonment or ◦ all offences punishable with fine only - Power to pass sentence: ◦ 6 months’ imprisonment ◦ a fine not more than RM1, 000 ◦ any sentence combining either of the aforesaid sentences Civil Jurisdiction Try all actions and suits of a civil nature where the plaintiff seeks to recover a debt or liquidated demand on money payable by the defendant with or without interest not exceeding RM3, 000. hajah alizah haji ali 41
  42. 42. The lowest court system which only applicable in village/rural/remote area  Presided by ketua kampung (Malay head)  For ASEAN race who can speak and understand Malay language  Jurisdiction – civil  matter below RM50 Criminal  simple offence minor in nature punishe d with fine not exceeding RM25  hajah alizah haji ali 42
  43. 43. i- SABAH AND SARAWAK COURT (NATIVE COURT) -having jurisdiction relating to native/custom ii- JUVENILE COURT -involve minor except case relating to death penalty  High court hajah alizah haji ali 43
  44. 44. SYARIAH COURT -unlimited jurisdiction over Syariah matter - Only bound on Muslim on that particular state only - Pass sentence not more than 3 years imprisonment, fine RM 5000 or 6 strokes hajah alizah haji ali 44

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