summary of source of law and court system

8/2/2019 Summary of Source of Law and Court System

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INTRODUCTION TO MALAYSIAN LEGALSYSTEM

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What is legal system?

What is law ?

Classification of law Sources of law (Civil & Islamic)

Court system (Civil and Islamic)



WHAT IS LEGAL SYSTEM ?

Wu Min Aun defines it as a framework of rules andinstitutions within a nation and regulating the individual’srelationship with others and between the individuals andgovernment

The structure on how the law is implemented and applied

• Definition of law

• Classification of law

• Sources of law (civil &Islamic)

• Court system



DEFINITION OF LAW

Rules and regulations.

The body of enacted or customary rules recognized by acommunity as binding-Oxford English Dictionary.

The body of principles recognized and applied by thestate in the administration of justice- John Salmond, Jurisprudence.

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CLASSIFICATION OF LAW

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PUBLIC LAW(individuals

and the State)

INTERNATIONAL LAW

(law that prevailsbetween States)

PRIVATE LAW(individuals

inter se)

PUBLICINTERNATIONAL

LAW

PRIVATEINTERNATIONAL

LAW

CONSTITUTIONALLAW (Rights of

individuals in theState)

CRIMINAL LAW(offences against

the State)

TRUST(Relationship

between trusteeand beneficiary)

TORT(Offencesagainst

individuals)

CONTRACT

(Rights andobligationsthat arise byagreement)



PUBLIC LAW

The law which governs the relationship betweenindividuals and the State.

Constitutional Law-Lays down the rights of individuals in the State.

Criminal Law-Codifies the various offencescommitted by individuals against the State.

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ACTUSREUS

MENSREA

CRIME



INTERNATIONAL LAW

Body of law and rules of conduct which States arebound to observe. Can be created in two main

ways:(i) By treaty;(ii)By custom

Public International Law-Law that prevailsbetween States.

Private International Law-Consists of the rulesthat guide a judge when the laws of more than onecountry affect a case (conflict of laws).

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PRIVATE LAW

Also known as civil law. Law which affects the rightsand duties of individuals amongst themselves.

Contract Law-Consensus ad idem.

Tort-Based on an obligation imposed by law ie:negligence, defamation, assault, trespass.

Trust-An equitable obligation binding a person(trustee) to deal with property over which he hascontrol (trust property) for the benefit of persons(beneficiaries).

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SOURCES OF LAW

Meaning of the term sources:

Historical Sources-Religious beliefs, local customs andopinion of jurists.

Legal Sources-Legal rules that make up the law.

Places where the law can be found-Statutes, law reports,previous decisions of the courts and text books.

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SOURCES OF LAW

WRITTEN LAW UNWRITTEN LAW

FederalConstitution

Legislation

Subsidiary

Legislation

English Law

Judicial Precedent

State

Constitution

Customary Law

•East Malaysia

• Adat Bumiputera

• Chinese customarylaw

•West Malaysia

•Adat Perpatih

•Adat Temengung

•Common law

•equity

SHARIAH LAW

•Al-Quran•Al-Sunnah•Qiyas•

Ijma’

*SomeShariah laware in theform of

StateEnactments



WRITTEN LAW The law that have been codified or recognized by the Federal and

State Constitution and embodied in a code or statute includingsubsidiary or delegated legislation.

Federal Constitution Supreme law of the land, together with the Constitution of the 13

states comprising the Federation. Laying down the powers of the

Federal and State Governments and also enshrines the basic orfundamental rights of the individual. This Constitution can only be amended by a two-thirds majority of the total number of members of the legislature.

State Constitution Each State possesses its own constitution regulating the

government of that State. The State Constitution contains

provisions which are enumerated in the Eight Schedule to theFederal Constitution. Article 75 of the Fed Cons-’If any State law is inconsistent with a

federal law, the federal law shall prevail and the State law shall,to the extent of the inconsistency, be void’.

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Legislation

Law enacted by a body constituted for this purpose.Parliament at federal level and by the various State Legislative

Assemblies at state level.

Laws enacted by Parliament after 1946 but before 1957 are

called Ordinances, laws enacted after 1957 are called Acts, lawsmade by the State Legislative Assemblies (except is Sarawak)are called Enactments) and the laws in Sarawak are calledOrdinances.

Subsidiary Legislation

Defined by the Interpretation Act 1967 as ‘any proclamation,rule, regulation, order, notification, by-law or otherinstrument made under any Ordinance, Enactment or otherlawful authority and having legislative effect’.

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Constitution of Parliament-Article 44 of the Fed Cons: The legislative authority of the federationshall be vested in a Parliament, which shall consistof the Yang Di-Pertuan Agong and Two Majlis(Houses of Parliament) to be known as the DewanNegara (Senate) and the Dewan Rakyat (House of Representatives).

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YDPA

DEWANRAKYAT

DEWANNEGARA

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http://upload.wikimedia.org/wikipedia/en/9/9a/Dewan_negara.jpg


http://upload.wikimedia.org/wikipedia/en/8/87/Dewan_rakyat.jpg



PROCEDURE FOR THE ENACTMENT OF AN ACT OF PARLIAMENT

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FIRST READING

When a Bill is firstintroduced in one of the

two houses, only the title

is actually read. After

the Bill is passed at this

stage, the text is printed

and distributed.

SECOND READING

Members debate the Bill.If accepted, the Bill is

passed on for

consideration by a

committee of the house.

A COMMITTEE OF

HOUSE

Considers the Bill in

detail and may amend

any part of it. The

Committee then submits

a report on the Bill to the

house. If the report is

approved, the Bill goes

on to a third reading in

the House.

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THIRD READING

Debate takes place and

amendments may be put

to a note. The House

then either passes or

defeats the Bill.

3ROYAL ASSENT

When the Bill has passed both

Houses in accordance with

Art. 68 (Fed. Consti.), it is

sent to the Yang Di-Pertuan

Agong for the Royal Assent.

The Bill then becomes a law

upon publication.

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OTHER HOUSES

When a Bill has passed

one House, it is sent to

the other house, where

it follows a similar

pattern. If the second

house amends the Bill,

the Bill must be

returned to the first

house for its approval

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D.R.36/2010 2010 Supply Bill 2010

Accepted

X

Dibentang

Pada : 15/10/2010

Dibentang

Oleh :

Y.A.B. Dato Sri Hj. MohdNajib bin Tun Haji Abdul

Razak, Prime Minister and

Minister of Finance

Disokong

Oleh :

Y.A.B. Tan Sri Dato Haji

Muhyiddin bin Mohd

Yassin, Deputy Prime

Minister 16

http://www.parlimen.gov.my/index.php?modload=document&uweb=dr&doc=bills&lang=en

http://www.parlimen.gov.my/index.php?modload=document&uweb=dr&doc=bills&lang=en



UNWRITTEN LAW

A convenient reference to that portion of Malaysian law whichis not enacted by the legislature (Parliament and the State Assemblies) and which is not found in the Constitutions,

both Federal and State.

1) English Law-Has been received in Malaysia and it is doneeither expressly or by implication. Section 3(1) of Civil Law Act 1956-Where the court is required

to apply ‘(a) in West Msia or any part thereof …..the commonlaw of England and the rules of equity as administered inEngland on the 7th of April 1956, (b) in Sabah….the common

law of England and the rules of Equity, together with statutesof general application, as administered or in force inEngland on the 1st of December, 1951 and (c) inSarawak…...the common law of England and the rules of equity, together with statutes of general application, asadministered or in force in England on the 12th of December,

1949’. 17



Section 5 (1) CLA 1956- Application of English Law in

commercial matters in the States of West Malaysia other thanMalacca and Penang….’the law to be administered shall be thesame as would be administered in England in the like case atthe date of the coming into force of this Act, if such questionor issue had arisen or had to be decided in England, unless in

any case other provision is or shall be made by any writtenlaw’.

Section 5 (2) CLA 1956- Application of English Law incommercial matters in the States of Malacca, Penang, Sabahand Sarawak….’the law to be administered shall be the same as

would be administered in England, in the like case at thecorresponding period, if such question or issue had arisen orhad to be decided in England, unless in any case otherprovision is or shall be made by any written law’.

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The application of English Law is subject to twolimitations-

It is only applied in the absence of local statutescovering the same matter (only to fill in the lacuna

in the local system) Only that part of the English Law that is suited to

the local circumstances will be applied.

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Common Law & Equity

Common Law-Also known as judge-made law.Refers to law laid down by judges sitting in thesuperior courts as distinct from statute lawenacted by the legislature.

Equity-Was introduced to reduce the harshness of common law. It originated from the English Law. It was developed out of the need to provide theplaintiff with relief where the strict common law

rules granted as an unsatisfactory remedy or noremedy at all.

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The pre-requisites to obtain equitable relief- He who comes to equity must come with clean hands;

Equity is equality;

Equity follows the law;

Delay defeats equity and etc.

Sec 3(2) of the Civil Law Act 1956 provides that in theevent of conflict or variance between the common lawand the rules of equity with reference to the same matter,the rules of equity shall prevail.

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2)Case law/doctrine of binding precedent/doctrine of stare decisis

Case Law-Refers to past cases or case report eg:Malayan Law Journal and Current Law Journal.

It refers to judicial decision of the court which is referby the latter court as a guide to decide future case assimilar facts and situation-Land mark to other cases.

Case Law become as sources of law according todoctrine of binding judicial precedent/Doctrine of stare decisis.

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DOCTRINE OF BINDING JUDICIAL PRECEDENT

(STARE DECISIS)

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Meaning ofprecedent

-Original

-Declatory

RatioDecidendi

ObiterDictum

Principleof the

Doctrine

Application-Msian

Hierarchy ofCourts

-Advantages-Disadvantages



Meaning-Can be said as previous cases or

decisions which may be taken for making adecision in the future cases in a similar facts orsimilar circumstances.

Two types of precedent-

Original-New made law or can be said as a casethat have not occurred before. It can used forthe future court to decide if the same matterarise.

Declaratory-Previous cases or decisions thatmay be taken as an example for deciding if thesame matter and circumstances arise again.

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Every decisions reached must be reported

together with the reason for deciding (RatioDecidendi)-Ratio Decidendi- Reasons or principles of deciding.Obiter Dictum-Things said by the judges which

is not relevant to the case but can be areference if the same thing (what the judgecomment) arise in the future. It does not formpart of the ratio decidendi but may be cited inlater cases.

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Federal Court

Court of Appeal

High Court

Sessions Court

Magistrate’s Court

Penghulu’s Court

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PRESENT HIERARCHY OFCOURTS IN MALAYSIA

Two main principles-

The inferior courts are boundby the decisions of thesuperior courts.

Some courts are bound bytheir own decisions.



ADVANTAGES AND DISADVANTAGES

Advantages-

Follow the interpretation set out by the highercourts.

Easier for reference. Guide for the future court and judges.

Safe time and money.

The decision is consistent.

Lawyer will be able to brief us the possibleoutcome of the cases that we are having based onprevious cases.

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Disadvantages-

Takes a lot of time in interpreting the cases.

It will stop the development of the law.

Problem of finding the ratio in particularcase.

Problem of bulk and complexity.

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Refers to norms, behaviours, practices and beliefs which is carried by one

generation to another WHICH HAS A BINDING AND LEGAL IMPACT. It is not

specific and may be different to one another.

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CUSTOMARY LAW



West Malaysia Adat Temenggung

A mixture of Islamic and Hindu Law which is head by theSultan or the Raja.This Adat is related to family matters like the division of theproperty (the eldest son will inherit).

Adat PerpatihInfluenced by the Minangkabau.Practiced in Negeri Sembilan and Naning, Melaka.The leader here is the Yang Di-Pertuan Besar, followed by Lembaga, Buapak and Undang. Every family has a leader.This Adat involves separation, marriage and inheritance.If you committed something wrong under this Adat you haveto pay for compensation.

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Chinese and Hindu Customary Law-

Deals with inheritance, marriage, division of property and divorce.

It is recognized under the civil law and matter that

arise will go to civil court.

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East Malaysia Adat MelayuFor those who are Islamic in religion.The Shari’ah Courts in East Malaysia is not similar with WestMalaysia.

Adat Bumiputera

Known as the Native Law.It is establish under the State Ordinance.

Chinese Customary Law Applied only in Sarawak.Does not cover all area, particularly in regards with the division

of property.Eg: Chinese Marriage Ordinance.

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SYARIAH/ISLAMIC LAW

Major source of Malaysian Law but only applicable to Muslims.

It is administered by a separate Shari’ah Courts.

Article 3 of Fed Cons-Islam to be the religion of Malaysia butother religions may be practiced in peace and harmony.

Al-Quran

A book of Allah sent to the last prophet, Nabi MuhammadS.A.W.

Contains the knowledge imparted by Allah and the guidancefor mankind for all time to come.Consists of many matters including everyday life, marriage,divorce, inheritance of property and etc.

Primary source of Islamic Law but not detail.

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Hadith and SunnahThe section filler after Quran upon which every Muslim resthis faith and life with.It literally means a saying conveys to man either throughhearing or witnessing an event.

The record of saying were called Hadith. Any Hadith that goes contrary to the Quran is not to beconsidered as authentic.Sunnah is an Arabic word which means method which wasapplied by our Prophet as a legal term comprising what hesaid, did and agreed to as express and defined in the Quran.

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Ijma’

Basically, it is a decision made through the discussion between NabiMuhammad S.A.W and his companions.

Can be defined as a consensus or opinion of the companions of theprophet and the agreement reached on the decision taken by thelearned Mufti or the jurists on various Islamic matters.

Qiyas

Defined as analogy or analogical deduction.

A legal principle introduced in order to decide logical confusion of acertain issue that has to do with the welfare of the Muslims.

In exercising this, it must be based on the Quran, Sunnah and Ijma’.

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SYSTEM OF COURTS (CIVIL AND ISLAMIC)

Federal Court

Court of Appeal

High Court

Sessions Court

Magistrate’s Court

Penghulu’s Court

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*All of these courtshave civil and criminal

jurisdiction.

SubordinateCourts

SuperiorCourts



COMPOSITION OF COURTS

Federal Court – The FC consists of the Chief Justice, the Presidentof the Court of Appeal, the Chief Judge of Malaya and Chief Judgeof Sabah and Sarawak and six Federal Court judges.

Court of Appeal – The COA constitutes the President of the Court

of Appeal and up to ten Court of Appeal Judges. High Court – Consists of two Chief Judges, one in Peninsular

Malaysia and one in Sabah and Sarawak.

Sessions Court – It is under the charge of the Sessions Court judge.

Magistrate’s Court – This court is presided over by a Magistrate.

Penghulu’s Court – It is presided over by a penghulu.



SYARIAH APPEAL COURT

SYARIAH HIGH COURT

SYARIAH SUBORDINATE COURT

Islamic Law is applied in Malaysia to a limited extent. (Art 3 FC).

Syariah Courts administer Islamic Law regarding for instancematrimonial matters, succession and Syariah offences.

Article 121(1A) of the Federal Constitution- The courts referred to in

Clause (1) shall have no jurisdiction in respect of any matter withinthe jurisdiction of the Syariah courts.

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summary of source of law and court system

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