UNIVERSITI TEKNOLOGI MARA, PUNCAK ALAM

FACULTY OF BUSINESS ADMINISTRATION

LAW416
BUSINESS LAW

ASSIGNMENT 1: MALAYSIA LEGAL SYSTEM)

 (SEMESTER I 2021/2022)

PREPARED BY:

1. UMI DAYANI BINTI SAMSURI (2021481198)

2. MUHAMMAD HABIB HARRAZ BIN ABDUL RAHMAN (2021617606)

3. MOHAMAD ALIF AIMAN BIN JUYANA@AZLAN (2021619958)

4. UZAIR SHAH BIN MOHAMMED ZULFIKAR (2021461884)

5. MUHAMMAD IRFAN DANNIEAL BIN MOHD ROMZI (2021817454)

6. KHAIRIL ALIF DANIAL BIN KHAIRIL NASRUL (2021864562)

GROUP: BA2471A

PREPARED FOR:

MADAM MARDIAH HAYATI

DATE OF SUBMISSION:

5 DECEMBER 2021
 TABLE OF CONTENT

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1. Question 3

2. Introduction To Judicial Precedent 4

3. The Hierarchy of The Courts 5-8

4. Doctrine of Judicial Precedent in Malaysia 9

5. Conclusion 10

1) QUESTION
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The doctrine of binding judicial precedent ensures the consistency and flexibility in

laying down the rules affecting both aspects of co-ordinate and hierarchical

jurisdictions that are binding on each particular court.

Explain how these rules apply. (20 marks)

2. INTRODUCTION TO JUDICIAL PRECEDENT

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Laws are passed in any community to control and guide the behavior of its members. Failure
to follow these laws is illegal and punishable by law. When a crime is committed, it is up to
the judge to determine the appropriate punishment or remedy for the perpetrator. Judges use
the notion of precedent to determine the punishment or remedies to be applied in a case.
Laws are enacted in any community to regulate and guide the behaviour of its members.
Failure to follow these laws is the crime of breaking the law and can result in punishment.
When a crime is committed, a judge's job is to determine the appropriate punishment or
remedy. When judges are deciding what the lawsuit should be about, they use the idea of
binding precedent to determine the punishment or remedies to be applied in that case. Laws
are enacted in any community to control and guide the behavior of its members. Failure to
follow these laws is a crime, which is illegal and punishable by law. When a crime has been
committed, it is the job of judges to determine the appropriate punishment or remedy for the
criminal. Judges use the concept of binding precedent to determine what punishment or
remedies to apply in a case1.

3. THE HIERARCHY OF THE COURTS

1
All Answers Ltd., “The Doctrine of Binding Precedent”, Law Teacher, August 26, 2021,
https://www.lawteacher.net/free-law-essays/constitutional-law/the-doctrine-of-binding-precedent-
constitutional-law-essay.php

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Superior Courts

I. The Federal Court

The highest court in the country is the Federal Court of Malaysia, it is considered as the
Supreme Court and it is the final court of appeal. All lower courts must follow the decision
of the Supreme Court. The Federal Court consists of the Chief Justice and six judges who sit
in the High Courts of Malay, Sabah, and Sarawak. The Federal Court is made up of three
judges. The Federal Supreme Court is the only court to rule on the following decisions:

 Any constitutional issues that arose during the High Court's proceedings were referred
to the Federal Court for resolution.
 In civil appeals, a plaintiff may appeal a lower court's denial or admission of evidence
on a point of law. A criminal defendant may appeal their acquittal, conviction, or
punishment on a technicality of law or fact2.

II. The Court of Appeal

The court that hears appeals from the lower courts is called the Court of Appeal. The
President of the Court of Appeal consists of ten members. The Court of Appeal can have 3 or
more judges and judges from different countries. The Court of Appeal is the second highest
court in Malaysia. The Court of Appeal can hear and make decisions regarding cases related
to civil law. However, in the following cases, you cannot appeal to the Court of Appeals.

 Where the High Court's decision or order is final under the terms of any written law.
 The parties' consent is required for the judgement or order to be made.
 Except with the Court's permission, if the amount or value of the claim's subject
matter is less than RM250,000
 The judgement or order only addresses the costs.

III. The High Court

2
All Answers Ltd., ”The Superior Courts In Malaysia”, Law Teacher, August 26, 2021,
https://www.lawteacher.net/free-law-essays/constitutional-law/the-superior-courts-in-malaysia-
constitutional-law-essay.php

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The High Court is the third highest court in Malaysia and it is divided into two high courts
which are located in Peninsular Malaysia and the other court is in Sabah and Sarawak. The
High Court in Peninsular Malaysia consists of one chief judge and 45 judges. The High Court
in Sabah and Sarawak has eleven judges judicial commisioners. High courts have the
authority to review and make changes to the courts when they're making mistakes. The High
Court can't hear a criminal case unless the offender has first been tried in a Magistrates'
Court. When the amount in dispute is greater than RM250,000, all matters, including
bankruptcy or winding-up proceedings, probates, and administration of deceased people's
estates, are subject to trial. The High Court has the power to hear civil cases that meet the
following criteria:

 The cause of the lawsuit occurred in Malaysia.

 The defendant lives or conducts business in Malaysia where the case is being tried.
 The events that led to the acts happened in Malaysia.
 Any land whose ownership is in dispute is located in Malaysia.

In Malaysia, the judiciary is increasingly becoming specialized. This initiative is motivated

by a desire to deliver the finest possible service to the public in a fair, quick, and efficient
manner. The specialization of the High Court of Malaya in Kuala Lumpur is carried out by
classifying the court into the following categories:

 Criminal Division.
 Appellate and Special Power Division.
 Civil Division.
 Criminal Division.

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Subordinate Court

IV. Session Court

A court of law consisting of a judge and jury who try civil and criminal cases. The highest
criminal court in a district and the first instance court for serious crimes punishable by more
than seven years in prison, life in prison, or death. There are two sessions of the Session
Court3.

A. Civil Jurisdiction

Civil law applies to individuals or individuals and another private entity, such as a firm or
organization. It is frequently alleged in civil actions that one party has suffered loss or harm
as a result of the other party's wrongdoing or negligence. In such cases, civil jurisdiction can
compensate the injured party while also holding the injurious or negligent party accountable
for their actions. The following are some of the most common types of civil cases:

 Personal injury
 Child custody cases
 Divorce
 Property dispute

B. Criminal Jurisdiction

Criminal law, on the other hand, is a branch of law that deals with crimes committed against
the state or society. Even if the victim is a single person rather than society as a whole, as in
the case of murder or assault, the crime can still be classified as a criminal offense if it
includes unlawful behaviour. Criminal law seeks to punish those who commit crimes rather
than resolve disagreements between individuals. The following are some examples of
criminal behaviour:

 Murder

3
“The Difference Between Civil and Criminal Jurisdiction”, Belsky, Weinberg & Horowitz, LLC, September 2,
2021, https://www.belsky-weinberg-horowitz.com/the-difference-between-civil-and-criminal-jurisdiction/

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  Theft or burglary
 Drunk driving
 Assault
 Domestic violence

V. Magistrate Court

A court headed by a judge with minor civil and criminal jurisdiction falls into two categories.

A. First Class Magistrate

First-Class Magistrate has jurisdiction over all offences that fall within the following
categories:

 Civil: amount dispute<RM100,000

 Criminal:
- Offence is punishable by a fine only-cover majority of traffic offences
- Offence provides for a term of imprisonment<RM10 years

B. Second Class Magistrate

In Malaysia, there is a state authority that appoints a second-class magistrate. The Second
Justice of the Peace is responsible for criminal matters of the following kind:

 If the offense is only punishable by a fine.

 If the crime provides for a period of imprisonment not exceeding 12 months.
A magistrate who is a Second-Class Magistrate may pass a sentence of imprisonment that is
not more than six months, fines not exceeding RM1,000 or statement that combines any of
the above statements. A lawsuit in which one party seeks to recover money from another,
totalling up to RM10,000.

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 4. DOCTRINE OF JUDICIAL PRECEDENT IN MALAYSIA

The notion of judicial precedent works both vertically and horizontally in Malaysia. The
major justification of following precedent is because it was established as relevant lay by a
higher court in the superior court. If a lower court violates the principle, the higher court has
the authority to correct or overturn the subordinate court’s decision on appeal.

Vertical operation means that the superior or higher court binds the subordinate courts to
adopt its previous ruling. The Federal Court is the highest court in Malaysia, followed by the
Court of Appeal, the High Court of Malaya, and the High Courts of Sabah and Sarawak.
Hight court judgements bind lower courts, while lower court decisions are not binding. All
courts in the hierarchy must obey earlier judgements of courts higher than themselves, and
they cannot refuse to do so on the grounds that they are wrong, outmoded, or issued per
incuriam owing to ignorance and bad reasoning.

Then there are horizontal operations. Horizontal operation implies that a court is bound by its
prior decisions, the decisions of its predecessors, and the decisions of courts of coordinate
jurisdiction. Courts will follow cases that have already been determined in this operation
when the facts are sufficiently comparable. Case law is the recorded decisions of selected
appellate and other courts that establish new interpretations of the law and may thus be
referred to as precedents in the stare decisis process4.

4
Irini Ibrahim, Norazlina Abdul Aziz, Syuhaeda Aeni Mat Ali and Nurul Shuhada Suhaimi, Introduction to
Business Law in Malaysia (Selangor: Malaha Press, 2020), 10 - 9

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 5. CONCLUSION

The doctrine of judicial precedent provides both advantages and disadvantages to the
Malaysian legal system. The primary benefit is consistency and fairness. Comparable
situations are judged in a comparable manner, which is regarded in fair and ethically right,
and all cases are treated equally. As a result, for the law to be applicable in all circumstances,
it must be implemented uniformly. One of the drawbacks is stiffness. That is, it is not always
as adaptive as it would want to be. This is the case when lower courts in the hierarchy are not
obligated to obey the rulings of higher courts. As a result, if faulty actions taken in the past
are not revealed as erroneous, they may be repeated. There is also the issue that few cases
ever make it all the way to the Supreme Court, so there is not much precedent to draw on. As
a result, when a case is comparable to a contemporary issue, the results are likely to be wrong
because the case might be old enough.

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