MALAYSIAN LEGAL SYSTEM In Malaysia, English Law were imported and adopted
during decision making. Conditions before English Law
There are various resources which formed the basis for the
legal systems of Malaysia. There are written law and
unwritten law. Constitution, legislation and subsidiary
legislation are under written law. English law, customs,
judicial decision are categorized under unwritten law.1
In Malaysia the most important source of law is the written
law2. The Federal Constitution is the supreme law of
Malaysia and any law passed after or before Merdeka.
According to A. 4(1) supreme law applicable to every states.
It sets out the legal framework of the federal government.
For State Constitution, each state has its own constitution.
Setting out the legal framework of a particular state
government. But because of Article 71(4) of the Federal
Constitution3, it is mandatory for each State Constitution to
contain certain essential provisions.
There are 2 types of legislation which are federal legislation
and state legislation. Federal legislation enacted by
parliament and applicable in all states. State Legislation
enacted by State Assemblies and applicable only to a
particular state.
Subsidiary Legislation means law made by person or bodies
under power delegated on them by the legislature via a
parent statue. S. 3 Interpretation Act4 mean: any rule,
regulation, order, notification, by-law or other instrument
made under any Act, Enactment or other lawful authority
and having legislative effect.
The unwritten law comprises the following: principles of
English law; judicial decisions; customary law.
Judicial decisions in point of law by judges of the High
courts that have not been reversed or overruled by the
superior courts and decisions of the Court of Appeal and
Federal Court. The decisions become precedents to be
followed in future similar cases. Also, known as stare
decisis. It operates vertically downwards when a precedent
comes from a superior court in the hierarchy to the court in
which the present case is being tried binds the inferior court.
It may work horizontally in which a superior court is bound
by its own previous decision and the decisions of coordinate
jurisdiction.
1 http://www.slideshare.net/kpmbp/malaysian-legal-system
2 http://www.nyulawglobal.org/globalex/Malaysia1.html
3 Article 71(4) of the Federal Constitution
4 S. 3 Interpretation Act
may be applied: where there is lacuna in the local system;
the law to be applied must not contrary to any provisions of
Malaysian written law; if the circumstances of the states of
Malaysia and their inhabitants permit and subject to such
qualifications as local circumstances render necessary.
Customary Law is customs of the local inhabitants in
Malaysia which have been accepted as law by the courts
forms part of the unwritten law. Adat Perpatih and Adat
Temenggung applicable to the Malays; Hindu customary
law applicable to followers of Hinduism; Chinese
customary law applicable to the Chinese; Native customary
law applicable to the non-Muslim.
Islamic Law applicable to Muslim and administered in the
Syariah Court particularly in the areas of marriage, divorce,
guardianship and inheritance.
MALAYSIAN JUDICIARY
The courts structure is divided into superior courts and
subordinate courts. Superior courts consist of Federal Court,
Court of Appeal, and High Courts. Subordinate Courts
consist of Session Courts and Magistrates Court5.
The Federal Court is vested with original, appellate and
advisory jurisdiction. Article 121(2) of the Federal
Constitution6 provides that the Federal Court shall have
jurisdiction to determine appeals from decision of the Court
of Appeal, of the High Court or a judge thereof; such
original or consultative jurisdiction as is specified in
Articles 1287 and 130; such other jurisdiction as may be
conferred by federal law. The exclusive and advisory
jurisdiction of the Federal Court is provided by Article 128
and 1308. Article 128(1)9 provides Federal Court have
jurisdiction to determine in accordance with any rules of
court regulating the exercise of such jurisdiction: any
question whether a law made by Parliament is invalid on the
ground that is makes provision with respect to which
parliament or the case may be, State Legislation has no
power to make laws; disputes on other question between
states or federation. In a case, Ah Thian v Government of
Malaysia10, Suffian LP dealing with the scope of Article
5 http://www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1002.htm
6 Article 121(2) of the Federal Constitution
7 Articles 128 of Federal Constitution
8 Article 130 of Federal Constitution
9 Articles 128(1) of Federal Constitution
10 Ah Thian v Government of Malaysia[1976] 2 MLJ 112
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128(1), only the Federal Court11 has jurisdiction to
determine whether a law made by Parliament or by a State
Legislation is invalid on the ground that it relates to a matter
with respect to which the relevant legislature has no power
to make law. This jurisdiction is exclusive to the Federal
Court. The advisory jurisdiction of Federal Court is
embodied in Article 130, providing that the Yang di-Pertuan
Agong12 may refer to the Federal Court for its opinion any
question as to the effect of any provision of the
Constitution. In the case Government of Malaysia v
Government of the State of Kelantan13 the question that was
referred by Yang di-Pertuan Agong for consideration by
Federal Court was whether certain mining and forest
concession agreements entered between Kelantan State
Government and a private company were in contravention
of Article 97(2)14 and 111(2) of the Federal Constitution.
Under Article 128(2) of the Federal Constitution and section
84(1) of the Court of Judicature Act 1964, Federal Court has
jurisdiction to determine constitutional questions referred to
it by the High Court.
Article 121(1B) of Federal Constitution establishes the
Court of Appeal. Under S. 50 Court of Judicature Act, Court
of Appeal may hear any criminal appeals against decision
made by High Court. Pursuant to S. 67(1) Court of
Judicature Act, the court has the power to hear appeals from
any judgement or order of any High Court.
Article 121(1)15 establishes two High Courts16 with
coordinate jurisdiction and status namely High Court in
Malaya and High Court of Sabah and Sarawak. High Court
vested with original jurisdiction, appellate jurisdiction,
revisionary and supervisory jurisdiction. S. 22 of Court of
Judicature Act provides the original jurisdiction as follows:
hear all criminal cases and pass any sentence. Under S.23
Court of Judicature Act17, High Court can hear all civil cases
and has unlimited monetary jurisdiction. Hearing cases
where the claim exceeds RM1000000. The specific civil
jurisdiction is provided by S. 24 Court of Judicature Act as
follows: jurisdiction relating to divorce, bankruptcy,
guardian, admiralty, probate. Under S. 26 and 27 Court of
Judicature Act, the High Court hears both civil and criminal
appeals from subordinate courts. According to S. 31 and S.
32 Court of Judicature Act, High Court may call for and
examine the record of criminal and civil proceedings before
subordinate courts for the purpose of satisfying itself as to
11 www.lexadin.nl/wlg/courts/nofr/oeur/lxctmal.htm
12https:hikmatun.wordpress.com/2007/01/08/bidang-kuasa-yang-di-pertuan-agong/
13 Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ
129
14 Article 97(2) of Federal Constitution
15 Article 121(1) of Federal Constitution
16 http://www.kehakiman.gov.my/en/node/594
17 S.23 Court of Judicature Act
the correctness, legality of any decision passed by
subordinate court.
Subordinate courts established by S. 3(2) of Subordinate
Court Act 1948. It consists of Session Courts and
Magistrates Court. Session Court may hear any criminal
cases except punishable with death pursuant to S. 63
Subordinate Court Act and may pass any sentence other
than death penalty provided by S. 64 Subordinate Court Act.
According to S.65(1)(a), Session Courts shall have
unlimited monetary jurisdiction to try all actions and suits of
a civil nature in respect of motor vehicle accidents, landlord
and tenant and distress.
Under S. 85 Subordinate court Act, a first class Magistrate
court18 in his criminal jurisdiction may try all offences with
imprisonment not exceed 10 years or with fine only. A first
class Magistrate Court may pass any sentence not exceed 5
years imprisonment; a maximum fine RM10000; whipping
up to 12 strokes. In his civil jurisdiction, according to S. 90
of Subordinate Court Act , the court may try any suits with
value of the subject matter below RM100000. In its
appellate jurisdiction, S. 86 and S. 91 Subordinate Court Act
provides that the court may hear civil and criminal appeals
from Penghulus Court.
Second Class Magistrate Court19 has only original
jurisdiction to try offences which the maximum term of
imprisonment below 12 months or punishable with fine only
provided by S. 88 Subordinate Court Act. According to S.
89 Subordinate Court Act, the court may impose a term of
imprisonment not exceeding 6 months or fine below
RM1000. In its civil jurisdiction, S. 92 Subordinate Court
Act, the court may try any suits with value of subject matter
below RM10000.
Special Court20 was established solely to hear and try cases
brought by or against Yang di-Pertuan Agong. This is
provided under Article 182 of the Federal Constitution as
follows: any proceedings by or against Yang di-Pertuan
Agong in his personal capacity shall be brought in a Special
Court under Clause (1); have exclusive jurisdiction to try all
offences committed in the Federation by the Yang di-
Pertuan Agong and all civil cases by or against the Yang di-
Pertuan Agong. In 1994 the first case was filed in Special
Court. Faridah Begum bte Abdullah v Sultan Haji Ahmad
Shah Al Mustain Billah Ibni Almarhum Shah Abu Bakar Ri
Ayatuddin Al Mu Adzam Shah, the plaintiff had sued
Sultan Pahang for libel and damages. Before proceedings
began, the court should first determine objection of
defendant whether the plaintiff not being a Malaysian
18 http://www.slideshare.net/kpmbp/malaysian-legal-system
19 http://www.hierarchystructure.com/malaysian-courts-hierarchy/
20 http://www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1007.htm
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citizen, has the right to sue Sultan in Special Court. By a
majority 4:1 the court decided that the plaintiff being a
Singaporean, has no right to sue Sultan in his personal
capacity.

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