LAW277

CHAPTER 1- MALAYSIAN LEGAL

SYSTEM

TOPICS
1) DEFINITION AND CLASSIFICATION OF
LAW
2) SOURCES OF LAW
3) JUDICIAL SYSTEM
4) TRIBUNAL FOR CONSUMER CLAIMS

PREPARED BY DR. NOOR ASHIKIN BASARUDIN

 1) DEFINITION OF LAW

A set of rules which are enforced by the State,

which is developed by the parliament, the
government, the king, the monarch or the court,
which everyone has to follow or otherwise they
have to face sanctions or penalty as consequences
of its breach.

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 DEFINITION OF LAW ACCORDING TO SCHOOL OF
Natural Law THOUGHTS
Positive Law
 According to jurist, St. Thomas
Aquinas, “Law is a rule and measure of
acts, whereby man is induced to act or
to restrain from acting…now the rule
and measure of human acts is the
reason, which is the first principle of
human acts…consequently it follows
that;”
 Man lives in a social group, and by
nature law is necessary to regulate
man’s behavior. Law is to be discovered
by man from his surroundings.
 John Austin - “Law is a command
set by the sovereign or superior
being to an inferior being, enforced
by sanctions.”
 According to him, law is the
command of the sovereign body in
a society and enforced by sanctions
(punishment), to be applied in the
event of disobedience

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DEFINITION OF LAW ACCORDING TO SCHOOL OF
THOUGHTS
Sociological
Law
 Roscoe Pound - “Law is an
instrument of social engineering;
to maximize the fulfillment of
interest of the community,
provide smooth running of the
machinery of society.”
 Karl Marx views law as a tool
and an important means to shape
the society.
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Realist Law
 Oliver Wendell Holmes – “The life
of the law has not been logic: it has
been experience. The felt necessities
of the time, the prevalent moral and
political theories, intuitions of public
policy, avowed or unconscious, even
the prejudices which judges share
with their fellow-men, have had a
good deal more to do than the
syllogism in determining the rules by
which men should be governed.
 2) CLASSIFICATION OF LAW

Public Law Private Law International Law

 Public law is the law that
governs the relationship
between individuals and the
state.
 Public law may be subdivided
into several areas of law dealing
with a particular type of matter
affecting the citizen-state
relationship.
 These areas are constitutional
law, administrative law and
criminal law, revenue law.
 Private law is concerned with
matters that affect the rights and
duties of individuals amongst
themselves.
 Some types of private law are
contract, tort, trust, land, family,
partnership, agency and
commercial law.
 A case is usually begun by an
individual who is called the
plaintiff who sues another party
known as the defendant. The
proceedings are known as civil
proceedings
 International law is the body of law
composing of principles & rules of
conduct which governs the relations
of countries for example the rules of
war.
 It comprises of the principles and
rules of conduct which countries feel
themselves bound to observe in their
relations with each other.
 International law consists of general
principles of law, customs,
conventions, treaties.
 International law can be divided into
two, public international law and
private international law.
 Classification of Law
Public Law Private Law International Law

Public International
Constitutional Law Contract Law

Criminal Law Tort Private

International Law

Administrative Law Sale of Goods

International Law Hire Purchase

Company Law

Agency Law

Family Law
 Public Law Private Law International Law

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 2) SOURCES OF LAW
 The unwritten and written law comprises the
following: Unwritten
Written law
law
Principles of
English law Federal Constitution
Judicial decisions/precedent
of superior courts e.g. the
High Courts, Courts of
State Constitution
Appeal and the Federal
Court.
Legislation
Customary law
Subsidiary Legislation
Islamic law
SOURCES OF LAW – UNWRITTEN
LAW
1) Principles of English law
 The application of English Law - Civil Law Act 1956
 Section 3 and 5 of the Civil Law Act
 Conditions: there must be a lacuna in law, and the principles of English law is suitable to the local
circumstances.
Section 3: Application of English Law in Malaysia Section 5: Application of English Commercial Law in
 Section 3(1)(a) of the Civil Law Act 1956 provides Malaysia
that the Court shall in West Malaysia apply the i. Section 5(1) of the Civil Law Act 1956: for West
English common law and rules of equity as Malaysia (except for Penang and Malacca), the
administered in England on 7 April 1956. principles of English commercial law as at 7 April
 Section 3(1(b) of the Civil Law Act 1956 provides
1956 shall be applied in the absence of local
that the Court shall in Sabah apply the English
legislation
common law, rules of equity and statutes of general
application as administered or in force in England on
ii. As for the states of Penang, Malacca, Sabah &
1 December 1951 Sarawak, Section 5(2) of the Civil Law Act 1956: the
 As for Sarawak, Section 3(1)(c) of the Civil Law Act principles of English commercial law as at the date on
1956 allows the Court to use English common law, which the matter has to be decided is to be used,
rules of equity and statutes of general application in where there is no Malaysia legislation on that area.
9force in England on 12 December 1949.
SOURCES OF LAW – UNWRITTEN
LAW
2) Judicial Precedent
 A precedent is commonly defined as “ a The Application of the doctrine of Binding Precedent in
judgment or decision of a court of law Malaysia:
cited as authority for the legal principle
embodied in its decision”.  The general rule is, where the subsequent case is in pari
 The general rule regulating the doctrine of material (upon the same matter or subject) to the earlier case:
precedent is that the decisions of higher
i. Vertical operation - ii. Horizontal
courts bind lower courts and some courts
Courts of lower rank operation - Courts of
are bound by their decision.
in Malaysia are the same rank are
 This practice of following precedent is
bound to follow the also bound to follow
also known as stare decisis (stand by what
decisions of the its previous decision.
has been decided). It is a legacy of the
courts of higher rank
English common law system.
in this country
 A judge will give reasons for reaching his
decision and in these reasons lies the ratio
decidendi (the reason behind the decision) Appeal Court
or the legal principle behind the decision.
Appeal Appeal
10 High Court Court Court
2000 2020
 Federal Court
Superior
Court of appeal court

High court of High court of

Malaya Borneo
(Sabah & Sarawak)
Sessions court Sessions court

Magistrates court Magistrates court Subordinate

court
Penghulu court Native court
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SOURCES OF LAW – UNWRITTEN
3) Customary Law LAW
• Adat Perpatih
 Customs are proved through repeated acts
Malays • Adat Temenggung
practised over a long period of time, leading
to the conclusion that by common consent
they have become the accepted norm, or the
law of the place, to the exclusion of ordinary
law. • Chinese
 In Malaysia, the term is also known as adat Customar Customary
Indian Chinese
or ‘native law & custom’ y Law law
 Art 160 of Federal Constitutions includes
‘customs & usages having the force of law’
• Indian Customary
in the definition of law.
law
 There is no common customary law for all
communities.
 Mostly related to marriage, divorce and Natives of Sabah
inheritance which is given legal force. & Sarawak • Native law &
custom

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 SOURCES OF LAW – UNWRITTEN
3) Customary Law LAWMalay Customary
• Customs and traditions in the Malay community Law which in course of time have obtained the character of
laws and as such can be enforced by the chiefs or elders.
• Malay adat comprises Adat Perpatih and Adat Temenggong.
Adat Perpatih Adat Temenggung Sabah and
 Adat Perpatih is practiced  Adat Temenggung is practiced Sarawak
 In Sabah, Malay adat is a mixture of
by the Malays in Negeri in other states of Malaysia – Islamic law and adat and is applicable in
Sembilan and Naning in based on patrilineal system matters concerning marriage, inheritance,
Malacca. with traces of Hindu elements. division of property etc.
 It is effective in matters  There are rules relating to tittle  In Sarawak Malay adat were codified by
such as land tenure, to land, succession to property, the rajahs under Undang-Undang
lineage and the election of marriage, divorce, election of Mahkamah Melayu Sarawak (1915) and
Lembaga, Undang, Yang official etc. the Muslim Wills Ordinance 1896.
Dipertuan Besar etc. This  Malay customary laws were previously
adat is well noted for its administered by the Native Courts but
matrilineal system. following the amendment to the law, they
are now administered by the Islamic
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Council of Sarawak and the Shariah
SOURCES OF LAW – UNWRITTEN
3) Customary Law LAW
Chinese and Hindu Customary
Law
 Old Chinese and Hindu customs are now obsolete
as they have been replaced by the written law.
After the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, their
polygamous marriages for instance have been
abolished.
 Thus, Chinese or Hindu customs have become of
little or no effect as a source of law in Malaysia

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SOURCES OF LAW – UNWRITTEN
3) Customary Law LAW
Islamic
 In Malaysia the Islamic law applied is of the Shafii school of jurisprudence (mazhab), with some modification by
Malay adat (customary) law. Law
 Islamic law is applicable only to Muslims and is administered in the Syariah court. Except for the Federal Territories,
the states have the power to administer the Islamic law.
 The Sources of Islamic law are the Quran, Sunnah, Ijma’, Qiyas and other forms of ijtihad.
Islamic Law under Federal Constitution State Administration of Islamic
 Article 121(1A) of the Federal Constitution states that the Law
3 independent authorities:
civil courts have no jurisdiction in respects of any matter i. Majlis Agama Islam (or its variation) : all
within the jurisdiction of Syariah court. It possessed civil matters concerning Islamic religion except
jurisdiction in proceedings between parties who are Muslims, on law & justice
and limited criminal jurisdictions over offences by Muslims ii. The Mufti (highest religious official) :
against religion. determination of Islamic laws
 Article 3 of the FC provides that, “Islam is the religion of the iii. Syariah Courts: administration of justice
Federation; but other religions may be practised in peace and
harmony in any part of the Federation.”
 The YDPA will be head of the religion of Islam for states that
does not have a Ruler and for Federal Territories of Kuala
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Lumpur, Putrajaya and Labuan.
 SOURCES OF LAW – WRITTEN
LAW
1) Federal Constitution
 Federal Constitution is the supreme law of
the country and no law can go against it.
 It sets out the structure of the government
and states that Malaysia is a system of
parliamentary democracy with no
separation of legislative and executive
branch. However, the judiciary is a
separate branch.
 The Federal Constitution states the basic
rights of every citizens, such as rights to
education, citizenship rights and voting
rights. There is also freedom to practice
one’s own religion, although Islam is the
religion of the Federation.
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 A Constitution can be described as the backbone of a
country’s legal system. It is framework from which laws
are made.
 A Constitution does a number of things, including:
• It establishes the form of Government
• It details the power to make laws
• It divides power between the State and Federal
Governments
• It separates powers between different bodies
 The doctrine of ‘Separation of Powers’ reflects the view
absolute power corrupts absolutely’.
 Separation of powers allows a system of checks and
balances to take place so that one arm or body of power
can check the other .
 3 bodies of powers:
Legislative Executive Judicial

• The power to make law • The power to govern and • The power to interpret the law
enforce the law to ensure that it made by the Parliament and to
• It components consist of: is implemented and followed settle any disputes about the law
 Parliament • It components consist of: • It components consist of:
 Senate  The Prime Minister  Judges
 House of  The Cabinet  Court
Representative
 Ministry

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 SOURCES OF LAW – WRITTEN
LAW
2) State Constitution
 Each 13 state has its own constitution. This
constitution regulates the government of
that particular state.
 The power of a state is provided in the
'State List' of the Federal Constitution.
Example of matter which falls under the
State List is land matters, agriculture,
forestry, local government, and Islamic
personal and family laws.

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SOURCES OF LAW – WRITTEN
LAW 3) Legislation
 Legislation is also known as primary legislation which refers to law enacted
by:

Types of Legislation

i) Acts
ii)
iii) Ordinances
Enactments
• Enacted by • Enacted by State • Promulgated by YDPA during
the Parliament Legislative emergency
Assembly (Dewan • Laws enacted by Sarawak State
Undangan Negeri) Legislative Assembly
• Laws enacted by the Parliament
between 1st April 1946 until 10th
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September 1959
 Legislative Process/The Law-making
 Article 44 of the Federal Constitution Process
vests the legislative authority of Malaysia in
Parliament (comprising of the YDPA and the two Houses of Parliament, i.e. the
Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).

Normally, a Bill introduced in either House, goes

through four stages: First Reading, Second Reading,
Committee Stage and Third Reading.

When both Houses have approved it, it is presented

to the YDPA for Royal Assent (this is done by
affixing the public seal after which the Act is
published.

A Bill becomes law after receiving the Royal

Assent but no law shall come into force until it has
been published in the Gazette

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 SOURCES OF LAW – WRITTEN
LAW4) Subsidiary Legislation
 Subsidiary legislation is defined by Section  Most of the time subsidiary legislation
3 of the Interpretation Act 1967 as ‘any is made by the executive
proclamation, rule, regulation, order, (administrators). Executive law making
notification, by-law or other instrument is inconsistent with the doctrine of
made under any Ordinance, Enactment or separation of powers.
other lawful authority and having  Due to the above reasons, we need
legislative effect’. some form of control over subsidiary
 It is also known as delegated/ subordinate legislation to protect the public from
legislation. Subsidiary legislation is the law such abuse, for example judicial
made through powers delegated by the control, legislation control,
legislature to a body or person via a parent consultation and publication.
statute
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 3) JUDICIAL
SYSTEM
Federal Court
Superior
Court of appeal court

High court of High court of

Malaya Borneo
(Sabah & Sarawak)
Sessions court Sessions court

Magistrates court Magistrates court Subordinate

court
Penghulu court Native court
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 The Federal court
 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.
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The Court of Appeal
 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.
 High court
1. Original Jurisdiction  Bankruptcy / winding up
 It has unlimited criminal and civil companies
powers.  Guardianship / custody of children
 Any civil matters which cannot be  Grants of probates, wills, letter of
determined in the subordinate courts is administration
heard before the High Court.  Injunction, SP, rescission of
 High court hears which carry death contract
penalty.  Matters relating to land
2. Appellate Jurisdiction  Auction and foreclosure
 Hears criminal and civil appeals from
the Magistrates’ and Session Court.
3. General, supervisory and reversionary
jurisdiction over all subordinate
4. High court hears more severe Civil cases
 Validity/dissolution of marriage (non-
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muslim)
 Sessions court
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.
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Magistrates court
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.
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.
Penghulu court Native court
 The lowest court system which only applicable in i) SABAH AND SARAWAK COURT (NATIVE
village/rural/remote area COURT)
 Presided by ketua kampung (Malay head) • having jurisdiction relating to native/custom
 For ASEAN race who can speak and understand ii) JUVENILE COURT
Malay language • involve minor except case relating to death
 Jurisdiction: penalty will be tried in High court
 Civil - matter below RM50
 Criminal - simple offence minor in nature punished
with fine not exceeding RM25

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

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 4) TRIBUNAL FOR CONSUMER
CLAIMS
 Action before the Tribunal for Consumer Claims can only be initiated
by the consumer.
 Limitations:
i. Claims not exceeding RM25,000;
ii. Petition must be made within three years of the claim accruing
[Section 99(2) Consumer Protection Act 1999];
iii. Under the act, parties are entitled to attend and be heard [section
108(1) CPA 1999] but are not entitled to legal representation
[section 108(2) CPA 1999].
 The success of the cases in the tribunal very much depends on the
following:
i. the capability of consumer and sometimes there is no equality in
legal capacity;
ii. the understanding of the president. On technical issues,
presidents do not have adequate knowledge.
 According to S 112(1), an award must be made within 60 days from
the first day the hearing before the tribunal commences.
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 The tribunal has very wide powers.
• Enables the tribunal to direct the
payment of money or to direct the
refund of the consideration paid for
goods or services or to direct
payment of compensation or to vary
or set aside a contract wholly or in
part.
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Non application of precedent.
Comment: Inconsistency of
judgements between presidents and
sometimes cases are wrongly decided.
Judgement is final. No right of
appeal. judgment is
Comment: Sometimes
wrongly decided. No redress for
consumer except for review of the case
in court.
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