LAW416

TOPIC 1:
MALAYSIAN
LEGAL SYSTEM

DR RAFIDAH@MALISSA BINTI
SALLEH 1
 Definition of Law

Classification of Law

Contents Sources of Law

Legislative Process

Judicial System in Malaysia

DR RAFIDAH@MALISSA BINTI SALLEH 2

 MALAYSIA TODAY
• Multi-ethnic, multi-cultural & multi-religious country
• Plural legal system i.e a national legal system based on the
An Overview common law tradition (the common law & rules of equity of
England)
• The Malaysian Legal System is a combination of the common
law, Syariah law & customary traditions.

DR RAFIDAH@MALISSA BINTI SALLEH 3

 What is LAW?

Oxford Dictionary:

Law is defined as a body of enacted or

customary rules recognized
by the community as binding.

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 DEFINITION OF LAW

Without the rule of law and

court enforce it, each one of us
Law as an instrument used by the wealthy would be free to push and bully
class (capitalists) to dominate and exploit our fellow citizens, and, which
the weaker and laboring class may be thought more
(proletariats) important, our fellow citizens
would be free to push and bully
us.

Karl Marx Justice Donaldson

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 DEFINITION OF LAW

Law is a command
set by a superior
being to an inferior
and enforced by
sanction

John Austin (Positive Law School)

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 Prof Hart, The Concept of Law,
said :
“Few question concerning human
society have been asked with
such persistence and answered by
serious thinkers in so many
diverse, strange, and even
paradoxical ways as the question
‘What is law?’ but the vast
majority of people will agree that
law is a necessary tool to regulate
and protect the collective
interests of society.

DR RAFIDAH@MALISSA BINTI SALLEH 7

 No specific definition of what is ‘law’
 Article 160 of the Federal Constitution – “Law “
includes written law, the common law in so far as it is
in operation in the Federation or any part thereof and
the customs or usage having legal force.
 The purposes or functions of law:
 to attain justice in the society
 what is right and what is wrong
 ensure peace and harmony in the society
 protect the citizen of the state from any
harm, crime, wrongful act of the others.

DR RAFIDAH@MALISSA BINTI SALLEH 8

 CLASSIFICATION OF LAW

PUBLIC LAW PRIVATE LAW INTERNATIONAL LAW

Criminal Constitutional International International

Contract Tort
Law Law Public Law Private Law

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 PUBLIC LAW
 Law that governs the
relationship between
individual and the
State

Criminal Law
Constitutional Law  Various offences
 List down the rights of committed by
individual in a State individuals against the
 Supremacy of State
Parliament  Obligation on
 Rights of citizens. individual not to
commit

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 PRIVATE LAW
 Law that governs the relationship
of rights and obligation between
individual and individual

Law of Contract
 rights and Law of Tort
 offences against
obligations that
arise by individuals
agreement

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 INTERNATIONAL LAW
 Consist of rules and principles dealing with the
conduct of the State and international organization
in their international relation with each other and
with private individual and transnational companies.

International Private Law

 It consists of the rules
International Public Law
that guide a judge
 Law that prevails
when the laws of more
between States
than one country affect
a case (conflict of
laws).

DR RAFIDAH@MALISSA BINTI SALLEH 12

 Sources of law
Sources may include as follows:-
1. Historical sources
Factors that influence the development of law,
but these factors are not recognized as law

2. Legal sources
Refers to legal rules that make up the law

3. Places
Refers to where law can be found

DR RAFIDAH@MALISSA BINTI SALLEH 13

SOURCES OF MALAYSIAN LAW

LEGAL SOURCES OF
MALAYSIAN LAW

WRITTEN UNWRITTEN SYARIAH

LAW LAW LAW

1. FEDERAL 2. STATE ENGLISH Common Law

CONSTITUTION CONSTITUTION LAW
Equity
CUSTOMS
(ADAT)
[Link]
JUDICIAL
4. SUBSIDIARY PRECEDENT

LEGISLATION
DR RAFIDAH@MALISSA BINTI SALLEH 14
SOURCES OF
MALAYSIAN LAW

1. Written law
It is the most important source of
law. It refers to the portion of the
Malaysian law which includes the
following:
• The Federal Constitution
• The State Constitution
• Legislation
• Subsidiary Legislation

DR RAFIDAH@MALISSA BINTI SALLEH 15

 2. Unwritten law
• It is simply that portion of the Malaysian law
which is not written i.e. law which is not being
enacted by the Parliament or State Assemblies
and which is not found in the written Federal and
State Constitutions.

• Unwritten law is found in cases decided by the

courts, local customs, etc. The unwritten law
comprises the following:
• English Law
• Customs
• Judicial Precedents

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 Written law:
1. FEDERAL CONSTITUTION
The Federal Constitution (FC)
• Art 4 of the FC - The supreme law of the land; any laws passed after Merdeka Day
which is inconsistent with this Constitution shall to the extend of inconsistency, be
VOID.
• The FC consists of laws which lay down the powers of the federal and state
government. (Art.73 & Art. 74)
• The FC enshrines the basic or the fundamental rights of individuals. (Art. 5 – Art. 13)
• These rights written in the Constitution can only be changed by a two-thirds majority
of the total number of members of the legislature.
• This is in contrast to normal laws which can be amended by a simple majority.
• Parliament is not supreme.

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Federal constitution

• Article 3: Islam is the religion of the federation but guarantees the

freedom of religion.
• Article 127: Separation of Powers – Executive, Legislature and
Judiciary.
• Article 73 confers legislative power to parliament to create law for
the whole or any part of the federation.
• Article 74: Subject matter of federal and State laws (List I – Federal
List, List II-State List and List III-Concurrent List)

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Amendment of the constitution

• Article 159 provides that the Constitution may be amended. Amendment means to add
or repeal provisions of the Constitution.
• Four types of amendment:
1. Amendment requiring simple majority e.g. in the admission of a state to the
Federation
2. Amendment requiring special majority. Amendment must be supported at
second and third readings by votes of not less than two-thirds of the total
numbers of the House. e.g provisions in the FC and legislations
3. Amendment requiring consent of the Conference of Rulers. e.g Malay Land
Reservations, rights of Malay, natives of Sabah and Sarawak
4. Amendment requiring consent of the Yang di Pertua Negeri Sabah and Sarawak.
E.g. citizenship, jurisdiction of High Court of Sabah and Sarawak, special
treatment of natives

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The State Constitution

There are also Constitutions of the 13 States comprising the Federation,

which forms part of written law in Malaysia.

Eight Schedule, List II, State List of the Federal Constitution

Some of these provisions include matters concerning the Ruler, the Executive
Council, the Legislature, etc.

The power of a state is provided in the ‘State List’ of the FC. Example of the
matter which falls under State List is:-Islamic personal and family laws.

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 LEGISLATION

• Legislation refers to law

enacted by a body
constituted for this purpose.

• In Malaysia, laws are

legislated by the Parliament
at the Federal level and by
various State Legislative
Assemblies at the state level.

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Legislation refers to law PARLIAMENT STATES LEGISLATIVE

enacted by :
ASSEMBLIES

Enacts law at Federal level Enacts law at State level

Within limits prescribed by Within limits prescribed by

Federal Constitution State Constitution
(a) Parliament
(b) State Legislative Law enacted before
31.08.1957 are called
Law enacted by State
Assemblies are called
Assemblies Ordinance Enactment except Sarawak
laws are called Ordinance

Law enacted after State Legislative Assembly

31.08.1957 are called Acts can enact law in matters
listed in List II of the Nine
Schedule

Parliament can enact laws in

matters listed in list I of the
Nine Schedule

DR RAFIDAH@MALISSA BINTI SALLEH 22

 NOMENCLATURE
(CLASSIFICATION)
ACTS
• Law enacted by Parliament made after Merdeka
Day / independence

ORDINANCE
• Law made between the period of Malayan Union (1946) &
independence OR law made by YDPA during emergency
(Act 150)

ENACTMENTS
• Laws made by state legislative Assemblies / made before
independence except Sarawak: its law are called ordinance

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 LEGISLATIVE PROCESS IN
MALAYSIA
(How does a bill become a law?)

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THE LEGISLATIVE PROCESS
First Reading

Second Reading

Committee
How a bill Stage

becomes Third Reading

Law? Other House

Royal Assent

Publication

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 First • When a Bill is 1st introduced by the Minister in one of
two houses, only its title is actually read. After the
Bill is passed at this stage, the text is printed and
reading distributed.

Second • The Minister will present an outline of principle of

the Bill. Members, then debate the Bill. If it is
accepted, it is passed on for consideration by
reading committee of the house.

• The committee will consider the Bill in detail and

Committee may amend any part of it. The committee then
submits a report on the Bill to the House. If the
stage report is approved, the Bill goes on to a 3rd reading in
the House.

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 Debate takes place and amendments
Third reading may be put to a vote. The House then
either passes or defeats the bill

When the bill has passed to one House, where

it follows a similar pattern. If the Second
Other House House amends the Bill, the bill must be
returned to the 1st house for its approval.

When the bill has passed both Houses in

Royal Assent accordance to article 68, it is sent to YDPA
for the Royal Assent within 30 days.

The bill becomes a law upon publication

Publication done by Warta Kerajaan Malaysia (Federal
Gazette)

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 SUBSIDIARY
LEGISLATION

• DEFINITION – Sec.3 of the Interpretation Acts 1948 & 1967

“any proclamation, rules, regulation, order, notification, by law or other instrument made
under any Ordinance, Enactment or other lawful authority and having legislative effect

• Subsidiary legislation is a law passed by a subordinate authority under powers conferred

upon it by an Act, commonly called the Parent Act.

• Parliament & State Assemblies may confer / delegate some of their legislative power to a
person or a body usually YDPA, Minister or local authority
e.g. Insurance Act 1963

• It has to be consistent with the Parent Act or the Constitution or otherwise it will be void.

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Subsidiary Legislation: Advantages
• Legislation by Parliament and State legislation are insufficient to
govern every matters.

• Parliament does not have enough time to deal with all the details of
every reformative measure.

• Parliament is sometimes inadequately qualified (or expertise) to

deal with the details of legislation on technical matters

• The legislative procedure is too slow and cumbersome to cope with

emergency situations, consequently, speedily exercisable
emergency powers are commonly conferred on ministers.

• Delegated legislations are more flexible than legislation.

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 1. TECHNICAL
TOPICS/EXPERTISE
REQUIRED

ADVANTAGES 2. Act of
Parliament is only
4. In emergency,
quick actions can
OF framework. Details
be made. SUBSIDIARY are left to
subsidiary
LEGISLATIONS legislation

3. Amendments
can be done faster

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 CONSULTATION
•
PUBLICITY
Few enabling Act make consultation
mandatory e.g. S. 36(1) Financial • If publication is made
Procedure Act 1957 i.e. YDPA make mandatory, non-compliance
regulations after consulting the will render it void.
Commodities Trading Commission.
• SL published in the Gazette.

Control Of
Subsidiary
Legislation

JUDICIAL REVIEW
PARLIAMENTARY CONTROL • Through judicial review whereby the court
• Enabling statute may repeal may by applying the doctrine of Ultra Vires
declare any regulation as void if:
statute itself or revoke/vary • Made in EXCESS statutory authority
delegated powers. given by Parent Act, or
• Did NOT follow a prescribed procedure
under the Parent Act, or
• Substantively contradict with
Constitution.

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 English law comprises of two parts:
(a) Common Law
(b) Equity

The extent of the application of English

Law is prescribed in Sections 3, 5 and 6
of the Civil Law Act 1956 (Revised

ENGLI 1972)

SH Sec 3(1) (a) Civil Law Act 1956 – In West

Malaysia, the courts shall apply the Common
LAW Law of England and the Rules of Equity as
administered in England on the 07.04.1956

Sec 3(1) (b)&(c) Civil Law Act 1956 In Sabah and

Sarawak, the courts shall apply the English Common
law and Rules of Equity, together with statutes of
general application, as administered or force in
England on the 01.12.1951 and Sarawak 12.12.1949
respectively.

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Conditional Application of English Law
1. Cut-off Dates
• Only English law on dates specified in the Section can
fill lacunae on local law.
• Lee Kee Choong v Empat Nombor Ekor [1976] 2 MLJ 93
Held: The court need not consider developments in
English law after 1956 because under S. 3(1) of the CLO
1956 which stated that any subsequent march in English
authority is not embodied.

2. Absence of local legislation.

• Applied only in the absence of local statutes covering
the same matter to fill lacunae in such law.
• Attorney General Malaysia v Manjeet Singh Dhillon
[1991] 1 MLJ 167
Held: In the absence of any specific local legislation
concerning contempt of court, the common law of
contempt should be applied under S. 3 CLA 1956.
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3. Suitable to local circumstances

• Proviso to Section 3(1)

“The said common law ,rules of equity and statutes of general
application shall be applied so far only as the circumstances of
the states of Malaysia and their respective inhabitants permit
and subject to such qualification as local circumstances render
necessary”

• Syarikat Batu Sinar v UMBC Finance Bhd [1990] 2 CLJ 691

Held : The difference in law and practice in Malaysia constitutes
such a distinctive local circumstances of the local inhabitants of
West Malaysia ‘ that English cases on the failure to register a
vehicle ownership claim should not be followed.

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 Application of English Commercial Law is provided in Section 5.

Section 5(1) of the CLA 1956 introduces into the former Malay States (except Penang and
Malacca) principles of English commercial law as it stood on 7 April 1956 in the absence
of local legislation.

Section 5 (2) which applies to the states of Penang , Malacca , Sabah and Sarawak
provides that English commercial law shall apply to the matter which has to be decided in
the named states as it would in England.

Section 5 provides for specific application of the English law in the following areas:
partnership, corporation, banks & banking, principal & agent, carriers by land, air and
sea, marine insurance, average life and fire insurance and mercantile law generally.

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In Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar[1933] A. C.
342

Privy council : Looks as the nature of the statute to be applied i.e

whether or not it’s mercantile law. If a question had arisen concerning
mercantile law generally, the statutes could be pleaded if the question
had arisen in England ; likewise they could be pleaded if the facts
permitted their application.

Held : the facts of the case did not allow the application of the English
Moneylenders Act as it was not a statute of general application.

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• Section 6 of CLA 1956 recognizes the unsuitability of
English Law in land matter since Malaysia do have
comprehensive law i.e. National Land Code.

• Privy Council in United Malayan Banking Corporation Bhd

v Pemungut Hasil Tanah, Kota Tinggi [1984] 2 MLJ 87:

“The National Land Code is a complete and comprehensive

code of law governing the tenure of land in Malaysia and the
incidents of it, as well as other important matters affecting
land there, and there is no room for the importation of any
rules of English Law in that field in so far as the Code itself may
expressly provide for this.”

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 • Equity is supplement to the
common law
Equity • Equity does not contradict
with the common law but
aims to correct its rigidity

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DR RAFIDAH@MALISSA BINTI SALLEH
 CUSTOMARY LAW

CL is the regular pattern of social behavior,

accepted by a given society as binding upon itself.
It prescribes behavior that has been found to be
beneficial as a means of generating harmonious

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interpersonal relations and to solve conflict.

Some of the customs of local inhabitants

have been accepted as law by the court

DR RAFIDAH@MALISSA BINTI SALLEH

 CHINESE
CUSTOMARY
LAW

MALAY INDIAN
CUSTOMARY
CUSTOMARY CUSTOMARY
LAW
LAW LAW

NATIVE
CUSTOMARY
LAW

DR RAFIDAH@MALISSA BINTI SALLEH 40

 MALAY CUSTOMARY LAW

1. Adat Perpatih:
• Practiced in Negeri Sembilan
• Customary land inherited by Woman
• Election of Chiefs (buapak, lembaga, undang & YDPB)

2. Adat Temenggung:
• Practiced in most Malay States
• Propriety rights – clear land and continue to occupy
• Criminal – retaliation

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Indian and Chinese Customary Law
• Traders that came in with their own customs
• Before: applied Hindu and Chinese customary law – accepted
polygamous marriage
• Now: Law Reform (Marriage and Divorce) Act 1976 – abolished
polygamous marriage

Native Customary Law (Sabah & Sarawak)

• Matters deals with these law include offences against persons,
property and tribes aside from matrimonial and inheritance
questions.
• In Sabah, Native laws are administered by Native Courts
established by their respective Native Courts Enactment 1992.
• In Sarawak, Native Courts are established under Sarawak Native
Courts Ordinance 1955
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 Judicial Precedents are decisions
made by a previous judge in previous
cases that have similar situations.

Decisions of these courts were made,

JUDICIAL and still are being made systematically
by the use of what is called the

PRECEDENTS ‘doctrine of binding judicial precedent’

or the rule of stare decisis i.e. to stand
by cases already decided.

Res Judicata: the final decision of the

court, which is binding the immediate
parties to the case. If the parties are
not satisfied with the decisions, they
may appeal to the higher courts.

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 1. Binding
Two • All decisions of higher courts bind the
lower courts

categories • The higher courts are bound by their own

decision

of judicial
precedents 2. Persuasive
: • High Court Judges are not bound to
follow the decisions of another High
Court Judges
• Decisions from outside of the Malaysian
Courts

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• DOCTRINE OF JUDICIAL PRECEDENT:

FEDERAL Decisions of Federal Court

COURT(FC) binds all lower courts

COA is bound by the decision of FC.

COURT OF COA’s decision is binding on all lower
APPEAL(COA) courts.
COA is also bound by its own decision

HIGH
COURT(HC) HC decision is binding on all
subordinate courts
SUBORDINATE
Bound by the decisions of the superior
COURTS(SC) courts.

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DR RAFIDAH@MALISSA BINTI SALLEH

 1. Judges may ignore or overrule a
precedent laid down by a lower court
where the case is on appeal

Exception 2. Judges can refuse to apply previous

precedent if it is made in ignorance
s to the of a statute or through lack of care
(per incuriam decisions)
rule:
3. Judges may distinguish the cases
where there are material differences
in facts of the case before them and
the case laying down the precedent

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 Islamic law – an all-embracing body of religious
duties and ethical, moral and legal rules.

Primary Sources: Al-Quran & As-Sunnah

SYARIAH Secondary Sources: Ijma’, Qiyas, Ijtihad etc.

LAW
Ramah v. Laton (1927) 6 FMSLR 1278; Islamic law
is not foreign law but local law and the law of the
land.

Art 3 FC – Islam is the religion of the Federation,

but other religions may be practiced in peace and
harmony in any part of the Federation.

DR RAFIDAH@MALISSA BINTI SALLEH 47

• Under Ninth Schedule of the Federal Constitution, with
reference to legislative lists, Islamic Law falls under List II-State
List. It is State matter.
• Article 11 of the Federal Constitution provides that every
person has the right to profess and practice his religion.
• The FC sets out that Islamic law in Malaysia is confined to the
personal laws and within the powers of the State.
• The State Legislative Assembly can enact laws on Islamic
matter such as relating to succession, betrothal, marriage,
divorce, dower, maintenance, adoption, legitimacy,
guardianship etc.
• It can be said that the jurisdiction given by the State and
Syariah courts is limited.

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• Article 121(1)(A) of the Federal Constitution, which came into force
on 10th June 1988, provides that “…the High Courts and Courts
Subordinate to it shall have no jurisdiction in any matter which is the
jurisdiction of the Syariah Court…”

• Mohamed Habibullah v Faridah bt Dato Talib [1992] 2 MLJ 793

- Article 121(1A) is a provision to prevent conflicting jurisdiction
between the civil courts and the Syariah courts.

• Other case: Lina Joy v Majlis Agama Islam Wilayah

Persekutuan (2004)

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Hierarchy of Courts in Malaysia

Federal Court

Superior Courts
Court of
Appeal

High Court of
High Court of
Sabah &
Malaya
Sarawak

Inferior/lower Courts
Sessions Sessions
Court Court

DR RAFIDAH@MALISSA BINTI SALLEH

Magistrates’ Magistrates’ 50
Court Court
 Courts with Special Jurisdictions:
• Syariah Court
• Native court
• Martial Courts
• Juvenile Courts / Child Court
• Special Court for Rulers

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 FEDERAL COURT
• Federal Court is the highest court in Malaysia
• Chief Justice of FC, President of COA, 2 Chief Judges of HC, 4
other judges & such other additional judges. Current number
is 7.
• All FC judges appointed by YDPA acting on advice of PM.
• Every proceeding of FC is heard and disposed of by 3 judges or
such greater uneven number as CJ may determined.
• As a final court of appeal normally sits in a full bench of 5
judges, rarely (if important), full bench of 7

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• Jurisdictions:

1. Determine a law made by Parliament or by the Legislature of a

State is valid or invalid.
2. Decide on disputes on any other question between States or
between the Federation and any other states in Malaysia (original
juridiction).
 Federal court may also exercise a consultative jurisdiction for
the Federation or states’ government when the need arises.
3. The Federal Court shall also have the jurisdiction to hear and
determine any cases (or appeal) brought to it by the Court of
Appeal and High Court on criminal and civil matters.
4. To give opinion on any question referred to it by YDPA concerning
the effect of any effect of any provision of the Constitution which
already arisen or likely to arise as provided under Article 30 of the
FC.

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 COURT OF APPEAL
• The court of appeal was established under Article 121 of the Federal Constitution.

Composition of the Court (Art 122A (1) FC

• The court has a President + 15 other judges (16 persons altogether)

Jurisdiction of the Court

• Jurisdiction to determine appeals from the High Court on criminal and civil matters (appellate jurisdiction).

Civil Appeal Cases

1. Appeals to the Court of Appeal are restricted by Section 68 of CJA 1964.
a) Where the amount or value of the subject-matter of the claim is more than RM1 million, except
with leave of the Court of Appeal;
b) Where the judgment or order is made by consent of the parties;
c) Where the judgment or order relates to costs only, which by laws are left to the discretion of the
court except with the leave of the Court of Appeal;
d) Where by any written law for the time being in force, the judgment or order of the High Court is
expressly declared to be final.

Criminal Appeal Cases

• Has jurisdiction to hear and determine any appeal against the decision of the High Court

Proceedings in Court:
• Three judges at any one time OR more(but must be of uneven numbers i.e. 5, 7,9, 11) decisions are made by
majority i.e. 2:1 (2 to 1), 3:2, 4:3, 5:4

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 HIGH COURT
• Established under article 121(1) of the federal Constitution
• There are 2 high courts in Malaysia:-
• High court (for West Malaysia)
• High court (Sabah and Sarawak)
Composition
• Chief judges
• 47 judges in High Court Malaya
• 10 judges in Sabah and Sarawak

Jurisdiction:
• The jurisdiction of HC is original, appellate and supervisory.
a) Original jurisdiction – unlimited criminal and civil powers
b) Appellate jurisdiction – hear criminal and civil appeal from Session Courts and
Magistrate Courts as stated under Section 26 and 28 CJA 1964.

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 c) Power to refer any points of law arising in the appeal for the decision
of the Court of Appeal if it feels that it is in the public interest
paramount importance under section 35 CJA 1964.

d) Supervisory and revisionary jurisdiction over all subordinate courts

under section 31 CJA 1964

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SESSIONS COURT
This court has the jurisdiction to hear:
• Civil Cases
• Criminal Cases

Civil Cases
• Jurisdiction to hear cases involving claims up to RM1 million (S. 65 SCA 1948)
• Deal with civil matters involving specific performance, rescission of contracts and cancellation or
rectification of instruments.
• May entertain cases concerning motor vehicles accident, landlord and tenant (unlimited
jurisdiction) – Section 69 of the Subordinate Court Act 1948

Criminal Cases
• All offences other than punishable with death (S. 63 & S. 64 SCA 1948)
• May imposed any sentence allowed by law except sentence of death

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MAGISTRATES’ COURT

This court also has the jurisdiction to hear:-

• Civil Cases
• Criminal Cases

• There are two (2) types of classes of magistrate i.e.

1. First Class Magistrate
2. Second Class Magistrate

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First Class Magistrate

Criminal Cases - Section 85 SCA 1948

 Try all offences punishable with up to 10 years imprisonment or with fine only
and offences related to punishment for robbery and house breaking by night.
 Section 87 SCA- where a person is found guilty, the Magistrates may pass
any sentence allowed by the law not exceeding:
a) 5 years imprisonment;
b) fine up to RM10,000;
c) whipping up to 12 strokes;
d) the combination of any of the above mentioned

Civil Cases
 To try all litigation where the matter in dispute or subject matter does not
exceed RM 100,000.

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Second Class Magistrate

Criminal cases - Section 88 SCA 1948

 The term of imprisonment not more than 12 months, and /or punishable by fine
only.
 A Second Class Magistrate may pass sentence allowed by the law:
a) not exceeding 6 months imprisonment;
b) a fine not more than RM 1000;
c) the combination of any of the above mentioned

Civil Cases – Section 92 SCA 1948

 To try all litigation where the matter in dispute or subject matter does not exceed
RM 10,000.

DR RAFIDAH@MALISSA BINTI SALLEH

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