Part A

Chapter 1: Malaysian Legal System

1. Intro
Aim: to attain justice in society

2. Classification of law
Public law
Governs the relation between individuals and state

Constitutional law (citizenship, right to vote, fundamental liberties)

Criminal law
 Prosecuting the offender/accused in a court of justice
 Prosecution is done by the Public Prosecutor
 The philosophy behind a sentence for criminal offence is (to punish/ deterrence,
rehabilitation)

International law
Governs the relation between one state and another (laws of sea, air, space, international
trade)

Public international law

 Prevails between gov of a country to gov of another country
Private International law
 Relating to conflict between individual in one state/country to another individual in
another state/country

Private law/ Civil law

 Matters that affect rights & duties of individuals among them in a state/country
 Eg. Law of contract, torts, marriage & divorce, inheritance, custody & maintenance,
trust
 Plaintiff (aggrieved/ injured party) & Defendant (wrongdoers) for damages/
compensation, injunction (order), specific performance, recovery of property/
declaration
 Philosophy behind a judgement/ order for remedies
o To restore the Plaintiff to the position they were in prior to the infringement
o To compensate the Plaintiff
o To punish the Defendant
3. Malaysian Courts’ Structure

Subordinate Courts
 In Peninsular Malaysia (Sessions Court, Magistrate Court, Court for Children)
 In East Malaysia, (add. Native court)
 Only have original jurisdiction (monetary value)
 Do not have appellate/ supervisory jurisdiction

Court for children (below 18 yrs old)

 Previously known as Juvenile Court
 Parallel to Magistrate court
 All criminal cases except cases carrying death penalty
Native court (civil & criminal)
 Only exists in S&S
 Matters affect native laws & customs
 Native system of personal law
 Civil cases (exc. land) not exceed RM50

Superior Courts
 High Court, Court of Appeal, Federal Court

Original Jurisdiction
Appellate Jurisdiction
 Have two chances of appeal to superior
 If parties choose to appeal (origin in subordinate court), final court is Court of Appeal
 If parties choose to appeal (origin in High Court), final court is Federal Court
 Party appealing is Appellant, the opposite party is Respondent
Supervisory Jurisdiction

Advantanges of having the Hierarchy of the Courts

 Facilitates a system of appeals
 Facilitates the app. of the doctrine judicial precedent
 Facilitates specialization in the judicial process
 Results in greater admin. convenience, efficiency and cost effectiveness
4. Sources of Malaysian Law
 Historical sources (factor influenced: religious beliefs, local customs & opinion of
jurists)
 Places: eg. Statues, law, reports & text books
 Legal sources (written & unwritten)
 Written law:
o Enacted by person/ body which empowered to make a law
o Eg. Federal Constitution, State Constitution
o Eg. Legislation – Statues, Parents Act
 Unwritten law:
o Not being enacted by the legislature
o Simply non- statutory law
o Eg. Judicial decisions (English court, Malaysian superior court), Customs of local
inhabitants, natives’ customs, Syariah Law.

Federal constitution
 Federation of 13 States & 3 Federal Territories
 Provides for fundamentals of the country
 Cannot be altered/ amended except 2/3 majority of total members of Parliament

Fundamental Liberties/ Human Rights

 Define: basic rights & freedoms to which all human is entitled to
 Designed to protect the freedom of individual – to entrenched/ enshrined
 Cannot be altered/ amended or taken away unless Federal Constitution itself
amended.
Nature & impact
1. No person may be deprived of his life/ personal liberty except in accordance with law
(Article 5)
a. Protects individual from unlawful imprisonment/ put to death
2. No person may be subjected to slavery/ forced labour (Article 6)
a. Right of individual is given subject to the paramount interest of nation
b. Thus, Parliament make laws providing for compulsory national service
3. No person can be punished under a law which was not in forced when the alleged
crime was committed (Article 7)
a. Hindu religion – This made non-Muslim marriages monogamous
b. This effectively that laws against crimes cannot be passed with retrospectives effect
4. A person cannot be tried more than once for the same crime where he has already
been acquitted/ convicted earlier (Article 7)
5. All persons are equal before the law & entitled to its protection (Article 8)
a. Exceptions:
i. Regulating personal law
ii. Religion to persons professing that religion only
iii. Protection, well-being/ advancement of the aboriginal people of the Federation
 iv. Restricting enlistment in the Malay Regiment to Malays
6. Citizens cannot be discriminated (Article 12)
a. Subject to Article 153 of the Federal Constitution which permits the granting of special
privileges to Bumiputra
7. Freedom of religion (Article 11)
8. No citizen may be banished from the country (Article 9)
a. Exceptions – Federal Gov is permitted
9. Every citizen has right to freedom of speech, peaceful assembly & association
(Article 10)
a. Parliament impose restrictions – offence to question (sovereignty, powers, preprogatives
of the rulers & special position of the Malays
b. Freedom of speech does not entitle a person to defame another
10. Article 149 – empowers Parliament to make laws against subversion, whether or not
emergency is proclaimed
11. Article 150- allows YDPA to proclaim emergency (satisfied imminent danger)
12. Article 153- special privileges (Bumiputera/ Malays)
Universal Declaration of Human Rights
 Adopted by the UNGA in 1948- partly response to atrocities of World War II
 Urges member nation to promote a number of human, civil, economic & social rights
 “the foundation of freedom of justice & a peace world”

State Constitution
Provision concerning:
 Ruler
 Executive Council
 Legislative Assembly
 Financial provision
 State employees
 Amendment to the State Constitution
 Matters as provided under Federal Constitution
Legislation
 Enacted by legislature/ legislative body (at federal level)
 Legislature may well be – the Parliament, the State Legislative Assembly
(at state level)
 ACT- enacted by Parliament since 1957 (after independence)
 ORDINANCE- enacted by Parliament (before independence) / enacted by Sarawak
Legislative Assemblies (before & after independence)
 ENACTMENT- enacted by all of the State Legislative Assemblies (except Sarawak)
 Federal List- List l of Ninth Schedule in the Federal Constitution
o External Affairs
o Defences of Federation
o Internal Security
o Civil & Criminal law & procedure & admin of justice
o Finance
o Trade, commerce & industry
o Shipping, navigation & fisheries
o Education
o Medicine & health
 State List- List II of the Ninth Schedule in the Federal Constitution
o Islamic matters
o Land matters
o Agriculture & forest
o Local gov
o Boarding/ lodging houses, burial & cremation ground, market & licensing
of theatres & public amusement
o State works & water
o State gov machinery
o State holidays
o Native law
o Port & harbour
 Concurrent List- List III of the Ninth Schedule in Federal Constitution
(Parliament & State Legislative Assembly)
o Scholarship protection of young child & women
o Drainage & irrigation
o Culture & sport
o Public health
o Prevention of diseases
Legislative Process
 The process of making a legislation/ law by Parliament/ State Legislative Assembly
 Eg. Parliament – Federal Constitution, Standing Orders
(the House of Representatives, the Senate)
 Process in Parliament:
5. Initial Step: Minister prepare a Bill (draft of proposed legislation). Bill then introduced into
Parliament (commonly in Dewan Rakyat)
6. First Reading: Mere formality. Minister mention title of the Bill in the House & give oral notice
(when the second reading be moved)
7. Second Reading: Minister explain to the House on purpose of Bill & main policy issues. Debate
on the Bill is then carried out
8. Committee Stage- Bill discussed in less formal manner & amendments proposed (if necessary).
The Bill would be considered by Special Committee
9. Third Reading- Another formality. Minister read the Bill for third time & passed.
10. The Bill must be submitted to the other House
11. When the Bill has been passed by both Houses, it sent to YDPA for Royal Assent.
12. Upon receiving the Royal Assent, the Bill becomes an Act of Parliament
(YDPA must assent to Bill within 30 days of it being presented)

Subsidiary Legislation
 Define: any proclamation, rule, regulation, order, notify, by-law or other instrument
made under any Act, Ordinance, Enactment or other lawful authority & having
legislative effect
 Increase in important source because Parliament & State Legislative lack time &
expertise to deal with specific technical detail
 Eg of “person/ body” empowered to make subs legislation – Minister, Attorney
General Department, Local Authorities

Advantages
 Passed very speedily (not have to undergo various stages)
 Parliament not have sufficient time to deal. Subs legislation fulfils this need
 Require special skill & knowledge of experts. Subs legislation fulfils this need
Disadvantages
 Growth of subs legislation goes against doctrine of separation of powers (law not
being passed by person elected for that purpose)
 Parliament cannot effectively supervise making of subs legislation – without proper
consideration of some important factor
 Too much is passed
Control over subs legislation
 Consultation
o Prior consultation with relevant advisory bodies and/or interest groups are often required
to be done before finalization of subs legislation
 Parliamentary Control (page 26)
 Judicial Review
 Publicity
o Must be published in the Gazette
o Effective only from the date of such publication / on such other date

English Law
 Refers to:
o English civil laws
o English statutes of general application
o English commercial and mercantile laws
 Found in, based from:
o English case laws
o English courts’ decisions

English Civil Laws

 Common law & rules of equity involving pirate laws
 The courts in Malaysia required to apply this, in a accordance to following cut off
dates (before):
o West Malaysia- 7.6.1956 (case law) Section 3(1)(a)
o Sabah- together with statutes of general application- 1.12.1951 (case statute) Section 3(1)(b)
o Sarawak- together with statutes of general application- 12.12.1949 (case statute)
Section 3(1)(c)
 Statues of general application referred to law passed by Parliament of England
relating all branches of law
 Application of English civil laws in Malaysia is subjected to:
o No local statutes on the matter in dispute
o If the English law is suitable to local circumstances

English Commercial and Mercantile Law

 The courts in Malaysia required to apply this, in a accordance to following cut off
dates (before):
o West Malaysia- 7.4.1956
o Penang, Malacca, Sabah & Sarawak- at the time the issue arises
 The states of Penang, Malacca, Sabah & Sarawak English Law may continuously apply
(no cut-off application)
 Application of English commercial and mercantile law is subjected to:
o Absence of local statues on the matter in dispute
o Only applicable if it suits local circumstances
Judicial Precedents (Case Law)
 Law in Malaysia can be found from decision of superior court which binds lower court
(doctrine of “judicial precedent” or doctrine of “stare decisis”
 These decision which have binding effect on future cases – judicial precedent/
persuasive precedent

What actually bind?

 Ratio decidendi of a judge of superior court binds other judges
 Ratio decidendi – the principle/ ruling & the reason behind the decision
What does not bind?
 Per incuriam – reasoning of decision/ principle of law which laid down by judge in
ignorant of statute/ a binding precedent
 Obiter dictum- things said by the way
Advantages of Judicial Precedent
 Consistency- the law is decided fairly & predictably
 Clarity- the law is clear
 Flexibility- law changes with the changing circumstances in society
 Detail- judge always distinguished one fact of a case to another to avoid precedent
Disadvantages of Judicial Precedent
 Laws is complicated- judge often forced to make illogical distinction to avoid
precedent. Too many reported cases law
 Difficult to identify the ratio decidendi
 Unfair result
Some terminologies used on “Precedent”
 Original Precedent: no precedent by superior court similar to the case, then judge
make his own decision
 Declaratory Precedent: judge applies the ratio decidendi of decision made earlier
 Persuasive Precedent: decision of judge which has persuasive value & importance for
reference in future cases
 Distinguishing Precedent: judge may not wish to apply the earlier precedent in cases:
o Material differences in fact between the case before him & the case laying down precedent
o Judge may refuse to apply a precedent which is per incuriam
o Judge on hearing appeal, may ignore/ overrule a precedent laid down by a court, where case
on appeal

Customs
 Refers to customs of local inhabitants which have been accepted by law
 Customs of non-muslims no longer much importance since passing of Law Reform Act
1976 which abolished polygamous marriage among non-muslims.
 Customary laws of Malays continue to be an important source of law
5. Statutory Interpretation
 Judiciary have to interpret the laws. In doing so, they must not usurp the legislative
function
 Laws must be interpreted correctly before the judges can apply them fairly, in deciding
a case before him
 Duty of judges is to ascertain the real intention of the legislature. In this task, judges in
Malaysia are assisted by the:
o Statutory rules
 The Interpretation Acts
o Common law rules of interpretation
 Literal Rule –
i. which a word/ phrase is given its literal/ ordinary grammatical
meaning
 Golden Rule –
i. In effect a modification of literal rule & contemplates the actual
modification of language to overcome defects of the Act
 Mischief Rule –
i. oldest rule.
ii. Contained in Heydon’s case.
iii. Discover status of law prior to legislation & compare it with
objectives of new law. ‘what’
 Purposive approach –
i. Words of statute are interpreted not in their ordinary, literal &
grammatical sense, but also with reference to the purpose of
legislation
 Contextual Rule –
i. A word should be construed in its context
o Common law rules of language/ presumptions
 Ejusdem Generis –
i. General words following a particular/ specific words will be
interpreted as referring to are same class/ genus
 Expressio unius est exclusion alterius –
i. To express one thing is by implication to exclude anything else
 Noscitur a socis – the words draw meaning from words around it
 In pari materia – “read together” / “read with respect of another”
o The Preambles of every Act/ Enactment/ Ordinance/ subsidiary legislation
o Dictionaries and other literary sources inc. text books

Statutory Rules
 The judge will refer Interpretation Act
 Interpretation Act, assists the courts to interpret written laws by providing the
definitions for commonly used words & terms, and its general directions