1.
NURAHMAD FAISYAL B. HJ JALIKNURAHMAD FAISYAL B. HJ JALIK
LL.B (Hons) UiTMLL.B (Hons) UiTM
College MCS Banting, MalaysiaCollege MCS Banting, Malaysia
Introduction to
Malaysian Legal System

2.
Introduction to LawIntroduction to Law
Explanation and Definition of ‘Law’
 Law in Relation to Justice
 Law and Ethics
 Rule of Law
 Law, the State and the Constitution
- Law in Malaysia
- Concept of a ‘State’
 Classification of Law
- Public Law
- International Law
- Private Law

3.
Sources Of Malaysian LawSources Of Malaysian Law
Meaning of ‘Sources’
Main Sources of Malaysian Law
- Written Law
- Unwritten Law
- Islamic Law

4.
Sources of Malaysian LawSources of Malaysian Law

5.
Written LawWritten Law
 comprises of:
1. The Federal and State
2. Legislation enacted by Parliament and the State
Assemblies
3. Subsidiary legislation made by persons or bodies
under powers conferred on them
 also referred to as statute law
 law made by Parliament and any subordinate
bodies to whom Parliament has delegated
power to legislate

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 where statute law and common law
conflict, statute law will prevail to the
extent of the conflict
 when hearing cases, the courts are not
just performing an act of fact-finding;
they also interpret statutes

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 in interpreting statutes, courts are guided
by:
a) Interpretation Acts
b) Extrinsic materials
c) Common law rules of statutory interpretation
d) Precedent
 courts interpret legislation to reflect the
apparent purpose or intention of the
legislators (a ‘purposive’ construction)

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 if the words of the Act are clear, effect must be
given to them notwithstanding that the end
result may be absurd
 courts use extrinsic (external) material in the
interpretation of statutes:
– some statutes set out their own definition or
interpretation
– common law rules of statutory interpretation and
precedent

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 3 main approaches to interpretation used by
the courts:
1. Literal or plain meaning approach
2. Golden rule approach
3. Mischief approach

10.
Literal ApproachLiteral Approach
 courts assume that the meaning
and intention of the legislature is
clear in the statute to be interpreted
 disadvantage – words can often have
more than one meaning, so the courts
have to decide which approach should
apply
 the whole Act is read and understood
before a detailed
 examination of a section, or of particular
words in a section, is begun

11.
Golden Rule ApproachGolden Rule Approach
 takes the plain meaning of the words
used in the statute and adheres to that
meaning
 only a gloss of the literal or plain meaning
rule
 where the words in an Act are at variance
with the legislators’ intention or can lead to
an absurdity, injustice or repugnancy, the
court will attempt to choose a meaning that
will avoid such a result

12.
Mischief ApproachMischief Approach
 where the literal interpretation is not
possible, courts will:
1. Look at the law before the statute was passed
2. Look to the overall intention of the legislation as
discovered from reading the Act as a whole
3. Ask: What mischief is it that this statute is
intended to remedy? What was its social
purpose?

13.
Written Law in MalaysiaWritten Law in Malaysia
 written law in Malaysia:
1.The Federal Constitution
2.State Constitutions
3.Legislation
4.Subsidiary legislation

14.
Federal ConstitutionFederal Constitution
supreme law of the country
applies to all States in the Federation
laying down the powers of the Federal
and State Governments
enshrines the basic or fundamental rights
of the individual

15.
State ConstitutionState Constitution
 each State possesses its own constitution
 contain provisions which are enumerated
in the Eighth Schedule
 Federal Constitution
 some of these provisions include matters
concerning the Ruler

16.
State ConstitutionState Constitution
 the Executive Council, the Legislature,
the Legislative Assembly, financial
provisions, State employees, and
amendment to the Constitution
 if such essential provisions are missing,
or if any provision is inconsistent with
them, Parliament may make provision to
give effect to them or to remove any
inconsistencies, as the case may be –
Article 71, Federal Constitution

17.
LegislationLegislation
 law enacted by a body constituted for this
purpose
 legislated by Parliament at federal level and
by the various State Legislative Assemblies
at state level
 laws that are enacted by Parliament after
1946 but before Malaysia’s Independence in
1957 – Ordinances
 those made after 1957 – Acts
 laws made by the State Legislative
Assemblies (except in Sarawak) –
Enactments
 laws in Sarawak – Ordinances

18.
Subsidiary LegislationSubsidiary Legislation
 Interpretation Act 1967: ‘any proclamation,
rule, regulation, order, notification, by-law
or other instrument made under any
Ordinance, Enactment or other lawful
authority and having legislative effect’
 deals with the details about which the
legislature has neither the time nor the
technical knowledge to enact
 if made in contravention of either a parent
Act or the Constitution is void – an
exception to this rule is the proclamation of
emergency under Art 150 of the Federal
Constitution

19.
Unwritten LawUnwritten Law
 portion of Malaysian law which is not
written
 comprises:
 1. English law
 2. Judicial decisions
 3. Customs

20.
Judicial DecisionJudicial Decision
 Malaysian law can also be found in the
judicial decisions of the High Court,
Court of Appeal and the Federal Court,
the then Supreme Court and the Judicial
Committee of the Privy Council
 decisions of these courts were made and
still are being made by the ‘doctrine of
binding precedent’

21.
PrecedentPrecedent
 is basically a judgment or decision of a court of
law cited as an authority for the legal principle
embodied in its decision
 may comprise:
– res judicata – final order of the court binding the
immediate parties to the decision
– ratio decidendi – the reason for the decision
– obiter dictum (sayings by the way) – no binding power,
although it can exercise an extremely strong
influence in a lower court, and even in a court of
equivalent standing, depending on the court and the
judge

22.
PrecedentPrecedent
 following a precedent’ means that a question
should be resolved in a certain way today because a
similar question has been so decided before
 this process of following an established procedure
is called stare decisis which literally means ‘to stand
by a decision’
 advantages of precedents:
– promote consistency, coherence and certainty
– promote efficiency and justice, ensuring equality and
fairness

23.
PrecedentPrecedent
disadvantages of precedents:
◦ certain precedent may not be relevant in today’s
circumstances but the judge may have to nevertheless
follow it
◦ may also be slow in responding to community changes
and it is cumbersome to change them as they may
require an Act of Parliament
in applying binding precedents, Malaysian law can
be found in the judicial decisions of the High Court,
Court of Appeal and the Federal Court and the
then Supreme Court, Federal Court and the
Judicial Committee of the Privy Council

24.
PrecedentPrecedent
 decisions of these courts were made, and are still
being made, systematically by the use of what is
called the ‘doctrine of binding judicial precedent’
 in the case of a binding precedent (the ratio
decidendi of an earlier case decision), each court is
bound by the decisions of courts of the same
level or higher than it, in the same hierarchy of
courts
 if a judge applies an existing rule of law without
extending it, his decision may be called a
declaratory precedent
 if the case before a judge is without precedent,
then the decision made by him may be called an
original precedent

25.
Judicial SystemJudicial System

26.
Federal CourtFederal Court
The highest court in our country
in its stead, the Supreme Court was set
up and was the highest court until 23
June 1994
now it is the highest court
appeals from the High Court can be
made to the Court of Appeal
the Supreme Court has, therefore, been
abolished since 24 June 1994

27.
High CourtHigh Court
decision is binding on all subordinate
courts but the High Court judge is not
bound to follow the decision of another
however, he may do so as a matter of
‘judicial comity’
Sessions Courts and the Magistrates’ Courts
are bound by precedents laid down by
the superior courts but their own
decisions are not binding on any court

28.
Subordinates CourtSubordinates Court
Subordinates Courts sometimes known
as Inferior Courts or Lower Courts
consists of the Sessions Courts, The
Magistrates Courts and the Penghulu’s
Court. However, the Penghulu’s Court
was abolished in 2013.
In addition, the Juvenile Court, Syariah
Court and Native Court are also
recognized as subordinate courts.

29.
CustomCustom
 generally, customs relating to family law, i.e.
marriage, divorce and inheritance, are given
legal force by the courts in Malaysia
 ‘adat’ applies to Malays
 prior to the enforcement of the Law Reform
(Marriage and Divorce) Act 1976, Hindu and
Chinese customary law applied to the
Hindus and Chinese respectively
 in Sabah and Sarawak, native customary laws
apply in land dealings over native customary
lands and family matters

30.
Islamic LawIslamic Law
 each State has the power to administer Islamic Law
 the head of the Muslim religion in a state (except for
Penang,Malacca, Sabah, Sarawak and the Federal
Territories) is the Sultan
 in Penang, Malacca, Sabah, Sarawak and the Federal
Territories, the Yang di-Pertua Negeri is the head
 the courts enforcing Islamic law – the Syariah Courts
 Islamic law applies to Muslims only
 in businesses, esp. areas of banking and finance,
Islamic principles are increasingly relevant in lending
and investments