MALAYSIAN LEGAL SYSTEM

Learning outcome
• Students should be able to:
Be familiar with the term law, sources of
Malaysian Law, the Malaysian Government
system and Malaysian Judicial system.
 INTRODUCTION
• What is law?
- A body of rule which is enforceable by the
State.
• Law in relation to justice
- the aim is to attain justice in society.
- justice? It is an abstract idea of right and
wrong , fairness and equality.
- therefore, the aim of a given law is to encourage
the doing of what is right or just in a particular set of
circumstances.
 Cont…
• Law, the State and Constitution
- Malaysia, which consists of Peninsular Malaysia,
Sabah and Sarawak is one political unit, but it is not
governed by the same set of laws.
- There are attempts to achieve uniformity.
- However, there are links that unite the two parts of
Malaysia, the Parliament and the Federal Court.
- The Parliament can and does legislate for the
whole country.
- The FC acts as a final court of appeal for the whole
country.
 Cont…
- Malaysia is a federation of 13 states and 3 Federal
Territories. And it has a Federal Constitution and a 13
State Constitutions.
- Federal Constitution is the Supreme Law of the land.
State Constitution is law made by State to govern her
own state. Any law made by Parliament or by
State Constitution that inconsistent with Federal
Constitution is VOID
- An article 74 of the Federal Constitution provides that
Parliament may make laws with respect to any of the
matters enumerated in the Federal Lists, State
Legislature may make laws in respect to any of the
matters enumerated in State List.
 Cont…
- Both Parliament and State Assembly may also make laws
with respect to any matters enumerated in the Concurrent List.
But, if there inconsistency, laws made by Parliament shall
prevail.
• Classification of Law
1) Public law
- PL is basically the law which governs the relationship
between individuals and the State.
- PL further divided into constitutional and criminal law
- Constitutional law lays down the rights of individuals in the
state.
- Criminal law codifies the various offences committed by
individuals against the State.
 Cont…
2) International law
- law which regulates the relationship
between one state and another.
- Eg: Singapore & Malaysia ( Pulau Batu Puteh)
- it may further be subdivided into 2
categories: public international law
private international
law
 Cont…
3) Private law
- law between one individual and another
- concerned with matters that affect the rights
and duties of individuals amongst themselves.
- Eg; contract, tort, trust etc
 Malaysian Constitution & Sources
of Law
• The word ‘sources’ has several meanings which
include the following:
1) historical sources – factors that have
influenced the development of the law
although they are not recognized as law.
( Eg: religious beliefs, local customs and
opinion of jurists)
2) Legal sources – legal rules that make up
the law . Can be classified into written &
unwritten
 Cont…
• Sources of law can be found from:
statutes
law reports
text books
• Sources of law can be classified into:
1) Written
- is the most important source of law.
- it refers to that portion of Malaysian Law which includes:
1. The Federal and State Constitution
2. Legislation enacted by Parliament and State
Assemblies
3. Subsidiary legislation
 Cont…
2) Unwritten law
- doesn’t mean that it is not written
- what made it unwritten is that it is not made
by the formal legislative bodies.
- Sources of unwritten law are:
1. English law
2. Case law
3. Customs
4. Islamic Law
 Cont…
• Constitution
- Federal Constutution is the supreme law of
the country. Any law passes after
Independence Day with inconsistent with the
Federal Constitution is void.
- Parliament exist under Constitution therefore
all action must consistent with the
Constitution. If inconsistent, it is void.
 Cont…
• Legislation
- Refers to law enacted by a body constituted
for this purpose.
- Legislation is not only contains law but is law
itself.
- Legislation made by parliament at the federal
level and by state legislative assemblies at
state level
 Cont…
• Subsidiary legislation
- In theory, power to rule in Malaysia is divided into :
Body of law

legislative executive judiciary

- Power to make law is vested to the legislative body.
- However, there are too little laws made by legislative body.
- Part of the power is vested to the executive body.
- Legislation made by the executive through delegation is
known as subsidiary legislation
 Cont…
• English Law
- EL is used as a source of law which was provided
in Sec 3 and sec 5 of Civil Law Act 1956
- However; sec 3 is bound on two limitations:
1) it is applied only in the absence of local
statutes on particular subjects
2) only part of the EL that is suited to local
circumstances will be applied.
 Cont…
• Doctrine of judicial precedent
- meaning: every time the judge is to make a
decision in a trial, they are follow the previous
decision made by the previous judge, where
the fact in the previous case is the same as in
the present case.
- If there is no precedent, the judge is bound to
make decision as he think just.
 Cont…
• Doctrine of JP policies are:
1) decisions made by a court will bind decision made by courts
which rank lower from her in hierarchy of courts
2) decisions of a HC will not bind decisions of other HC but are to
be respected
3) decisions of subordinate courts will bind those particular
courts only.
• Custom
- The most common customs that apply are ‘adat perpatih’ and
‘adat temenggung’.
- There is also customs for Chinese and Indian
 The Judicial System
• FEDERAL COURT
- It ranks at the highest in hierarchy of courts in Malaysia.
- Jurisdiction to hear: original
appellate on both
constitution question
advisory
Criminal appeals only can be made by the convict as against
sentence only, where as the prosecutor can appeals as
against any decision including acquittal
For civil appeals, is disallowed if amount in demand is less
than RM250,000(except with the HC & FC discretion?
 Cont…
• COURT OF APPEAL
- COA has jurisdiction to hear and determine
any appeal against any HC decision on
criminal matters.
- Civil appeals which can be hear only where
the amount of claim is at least RM250,000.
• HIGH COURT
Cont…
- Consist of two chief judges, one in peninsular Malaysia and one in Sabah and
Sarawak.
- Jurisdiction to hear: original
appellate
supervisory
Jurisdiction to hear original jurisdiction is unlimited, but in practise HC odes
not try a small criminal or civil cases.
HC jurisdiction is to try cases under her province only
Also has jurisdiction to hear appeal from subordinate courts.
However, the appeals of criminal disallowed if the amounts of penalty is not
more than RM25, for civil cases, appeals is not allowed if amount of claims
is not less than RM10,000.
 Cont…
• SESSION COURT
- Has jurisdiction to hear any types of criminal
cases except those deals with death sentence.
- Under civil jurisdiction, claims is not more than
RM250,000.
- For complex matters, such as trust, termination
of contract, the cases will be heard in HC even
the amount in demand is less than RM250,000.
 Cont..
• MAGISTRATE COURT
- Divided into 2:
1)1st class magistrate
2)2nd class magistrate
- The 1st class magistrate court is for civil case
where amount in claim is less RM25,000
- The 2nd class is to hear claims of less than
RM3000
 Cont..
• JUVENILE COURT
- Specially for minor between 10- 18.
- For murdered, the juvenile will be tried as an
adult.
 thank you for
your cooperation