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 (OffencesState –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)
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.
SOURCES OF MALAYSIAN LAW Written law Unwritten law Muslim law Federal State English JudicialConstitution 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)
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.
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.
THE JUDICIAL SYSTEM FEDERAL COURT COURT OF APPEAL HIGH COURT HIGH COURT Malaya Sabah & Sarawak Syari’ah Sessions Court Sessions Court CourtSyari’ah & Court Magistrate’s Court Magistrate’s Court Native Court Small Claims Court Small Claims Court Penghulu’s Court 7
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.
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).
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.
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.
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
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.
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.
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.