VIP Model Call Girls Kothrud ( Pune ) Call ON 8005736733 Starting From 5K to ...
Malaysian Legal System_2022.pdf
1. MALAYSIAN
LEGAL
SYSTEM
F I RST V E RSION: A HMAD WA SEEM
( WASEEM@SALAM.UI TM. ED U. MY) & D H I HNY B I N
Y UNUS ( S I MDI NI 89@YAHO O.COM)
S ECOND V E RSION: N URUL N O RAZI EMAH M O HD
PAUZI ( N O RAZIEMAH@UI TM. EDU. MY)
1
2. Topics
1.0 SOURCES OF LAW IN MALAYSIA
1.1 Federal and State constitution
1.2 Federal and State legislation
1.3 Subsidiary legislation
1.4 English Common law and equity
1.5 Customs
1.6 Judicial precedent
1.7 Islamic law
2.0 ORGANS OF THE GOVERNMENT
3.0 LEGISLATIVE PROCESS IN
MALAYSIA
4.0 ADMINISTRATION OF JUSTICE
4.1 Hierarchy of the courts
4.2 Jurisdiction of the Courts
2
4. 1.0 Sources of Malaysian Law
4
LEGAL SOURCES OF
MALAYSIAN LAW
UNWRITTEN
LAW
WRITTEN
LAW
SHARIAH
LAW
FEDERAL
CONSTITUTION
STATE
CONSTITUTION
CUSTOMS
(ADAT)
ENGLISH
LAW
JUDICIAL
PRECEDENT
LEGISLATION
SUBSIDIARY
LEGISLATION
6. 1.0 Sources of Malaysian Law
Written law 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
6
7. 7
1.1 Federal And State Constitution
The Federal Constitution (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 (invalid)
➢preserves the basic or the fundamental rights of individuals
➢These rights written in the Constitution can only be changed by
2/3 majority of the total number of members of the legislature.
➢contrast to normal laws which can be amended by a simple
majority
8. 8
1.1 Federal And State Constitution
The State Constitution
➢There are also Constitutions (Perlembagaan) of the 13 States
comprising the Federation (Persekutuan), which forms part of
written law in Malaysia.
➢Some of these provisions include matters concerning the Ruler,
the Executive Council, the Legislature, etc.
9. 9
1.1 Federal And State Legislation
➢What is 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.
➢Laws that are enacted by the Parliament before Malaysia’s
Independence in 1957 are called Ordinance, but those made after
1957 are called Acts.
➢On the other hand, laws made by the State Legislative Assemblies
(except Sarawak) are called Enactments. The laws in Sarawak are called
Ordinances.
10. 10
1.1 Federal And State Legislation
➢Legislation refers to law enacted by :
a) Parliament
b) State Legislative Assemblies
PARLIAMENT STATES LEGISLATIVE ASSEMBLIES
Enacts law at Federal level Enacts law at State level
Within limits prescribed by Federal
Constitution
Within limits prescribed by State
Constitution
Law enacted before 31.08.1957 are called
Ordinance
Law enacted by State Assemblies are called
Enactment except Sarawak laws are called
Ordinance
Law enacted after 31.08.1957 are called Acts
State Legislative Assembly 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
11. 11
1.3 Subsidiary Legislation/Delegated Legislation
➢Interpretation Act 1948 and 1967:
▪ Subsidiary Legislation means any proclamation, rule, regulation, order, notification,
or other instrument made under any Ordinance, enactment or other lawful authority
and having legislative effect
➢Subsidiary Legislation is very important as legislation by the Parliament
and the State Legislatures is insufficient to provide the laws required to
govern everyday matters.
➢Subsidiary legislation deals with the details about which legislature has
neither the time nor the technical knowledge to enact laws.
13. 13
➢Unwritten law is simply that portion of the Malaysian law which is
not written.
❑law which is not being enacted by the Parliament or State
Assemblies and which is not found in the written Federal and State
Constitutions.
➢Uwritten law is found in cases decided by the courts, local customs,
etc. The unwritten law comprises the following:
1. English Law
2. Customs
3. Judicial Precedents
14. 14
1.4 English Common Law and Equity
➢English law comprises of two parts:
1. Common Law
2. Equity
➢Sec 3(1) Civil Law Act 1956- in West Malaysia, the courts shall apply the
Common Law of England and the Rules of Equity as administered in England
on the 07.04.1956 (cut off date)
➢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.
➢After the cut off date, English law does not become law in Malaysia. Thus,
Section 3 (1) connotes the strict application of the English law in Malaysia
before the cut of date.
16. 16
1.6 Judicial Precedents
➢Judicial Precedents are decisions made by a previous judge in
previous cases that have similar situations.
➢Decisions of these courts were made, and still are being made
systematically by the use of what is called the ‘doctrine of
binding judicial precedent’ or the rule of stare decisis i.e. to
stand by cases already decided
17. 17
1.6 Judicial Precedents
➢2 categories of judicial precedents:
1)Binding
❖All decisions of higher courts bind the lower courts
❖The higher courts are bound by their own decision
2)Persuasive
❖High Court Judges are not bound to follow the decisions of
another High Court Judges
❖Decisions from outside of the Malaysian Courts
22. Hierarchy of Authority in accordance with the
Federal Constitution of Malaysia
Constitution of Malaysia (Federal Constitution)
Yang Di-Pertuan Agong
________________________________________________.
Executive: Legislature: Judiciary:
- Federal Court
- Court of Appeal
(Cabinet) (Parliament) - High Court
- Prime Minister - Dewan Negara - Sessions Court
- Ministers - Dewan Rakyat - Magistrate Court
- Ministries
23. 1) THE EXECUTIVE
❑The Malaysian constitution demand that the Prime
Minister should be a member of the Lower House of
parliament (House of Representatives) who, in the opinion
of the YDPA, commands a majority in Parliament.
❑The cabinet is chosen from among members of both
Houses of parliament and is responsible to the
development and welfare of the people in Malaysia as a
whole.
24. The Nominal (minor) Executive
❑Article 39 – vests the “executive authority” of the Federation in
the YDPA and is exercisable by him or by the Cabinet or any
Minister authorized by the Cabinet.
❑However, in the exercise of his functions, according to Article
40(1) and 1(a), “the YDPA shall act in accordance with the advice of
the Cabinet or of a Minister acting under the general authority of
the Cabinet, except as otherwise provided by the Constitution”
and “the YDPA shall accept and act in accordance with such
advice.”
25. The Real Executive : Prime Minister
❑According to Article 43(2)(a) of the Constitution, the Yang di-Pertuan Agong appoints
at his discretion a member of Parliament to be a Prime Minister, “who in his judgment
is likely to command the confidence of the majority members of that House”.
❑Only a member of Dewan Rakyat (the lower House can be appointed as the Prime
Minister).
❑The Prime Minister selects members of the Cabinet from among the members of
either House of Parliament and advices the Yang di-Pertuan Agong on their
appointment – Article 43(2)(b).
❑The Prime Minister also advises the YDPA on the appointment of all judges of the
Federal Court and of the High Court and that of the Auditor-General and the Attorney-
General.
26. The Cabinet
❑Article 43(1) of the Federal Constitution requires the appointment of Jemaah Menteri
(Cabinet of Ministers) to advise the YDPA.
❑The Cabinet is led by the Prime Minister.
❑Other Ministers are appointed on the advice of the Prime Minister.
❑The essential function of the Cabinet is to advise the YDPA in governing the country.
❑The Cabinet determines the policies and issues directives for their implementation by
the government administrative machinery at federal and state levels.
❑It also decides the types of legislation to be introduced in Parliament.
27. 2) THE LEGISLATIVE
❑The Legislative power in Malaysia is divided between the
Federal and State legislatures.
❑Federal legislation is made by the Parliament.
❑State legislation is handled by the State Legislative Council.
❑The Legislative branch has several functions, namely:
1. To enact the law
2. To amend the law
3. To repeal the law (where necessary)
28. 2) THE LEGISLATIVE
❑The Legislative branch of the nation (Federal) consists of the:
1. Yang Di-Pertuan Agong (YDPA)
2. Dewan Negara (Senate)
3. Dewan Rakyat (House of Representatives)
29. 3) THE JUDICIARY
❑Judiciary is a branch of government that is concerned with the
administration of justice.
❑It upholds law and order by ensuring that all are equally treated
before the law.
❑It is basically responsible for the implementation and
interpretation of the laws of the country.
30. 3) THE JUDICIARY
❑Article 121 of the Federal Constitution stipulated the “Judicial power”
of the Judiciary in Malaysia are vested in the Chief Justice, President of
the Court of Appeal, Chief Judges, and so on.
❑In terms of appointment of judges, Article 122B stipulated:
“The Chief Justice of the Federal Court, the President of the Court of
Appeal, and the Chief Judges of the High Courts and (subject to
Article 122C) the other judges of the Federal Court, of the Court of
Appeal and of the High Courts shall be appointed by the YDPA (Yang
di-Pertuan Agong), acting on the advice of the Prime Minister, and
after consulting the Conference of Rulers (Majlis Raja-raja Melayu).”
31. 3) THE JUDICIARY
FUNCTIONS OF JUDICIARY IN MALAYSIA
➢Adjudicatory Role- The courts supply a dispute-resolving mechanism
whenever the rights of the citizens clash with the rights of other citizens or
with the power of the state or when various organs of the state disagree
over the scope and extent of their jurisdiction
➢Penal function-In the field of criminal law, the court legitimize the
application of sanctions against transgressors of law
➢Enforcing constitutional supremacy-Art 4(1) FC
➢Safeguarding human rights-Art 5-13 FC
➢Interpreting laws
32. THE CONCEPT OF
SEPARATION OF POWER
3 basic and essential functions in the administration of any
independent state are the executive, legislative and judicial
functions.
1. The executive power covers the formulation of policy and the
carrying out of the actual tasks of government.
2. The legislative function relates to the making, altering and repealing
of laws by the appropriate organ of the State.
3. The judicial task is to uphold the Constitution, adjudicate disputes,
administer justice and interpret laws.
33. THE CONCEPT OF
SEPARATION OF POWER
➢ The basic idea of the doctrine is that the entire power of
the state (executive, legislative, judicial) should not be
given to one person or authority in the State.
➢ The concentration of all three governmental powers in the
hands of the same person or institution is an invitation to
despotism.
34. THE APPLICATION OF SEPARATION OF
POWER IN MALAYSIA
Relationship Between Legislative & Executive
There is no separation of executive and legislative power or function because
of the cabinet type or organization.
▪ Cabinet government: in Malaysia, the Cabinet is part of Parliament.
▪ Article 43(3) Federal Constitution – the political executive is collectively
responsible to Parliament.
➢During question time, debates and motions Ministers are answerable,
accountable and responsible to the representatives of the people.
35. THE APPLICATION OF SEPARATION OF
POWER IN MALAYSIA
➢ Law-making in Parliament – the Cabinet dominates the
legislative sphere.
➢ Most Acts of Parliament today are government-sponsored
and government piloted.
➢ The policy behind them is determined by the Cabinet which
uses its majority in Parliament to push a legislative proposal
through.
36. THE APPLICATION OF SEPARATION OF
POWER IN MALAYSIA
In term of membership, there is no separation between executive
and legislator. For example:
➢ Article 39 and 44: YDPA as the head of executive is also an
integral part of the Parliament.
➢ Article 43(2)(a): member of executive are also member of the
legislature.
➢ Article 38: Conference of Rulers can exercise both executive
and legislative function.
37. RELATIONSHIP BETWEEN LEGISLATIVE
& JUDICIARY
❑ In Malaysia, judges are absolutely barred from membership of both Houses
of Parliament
❑ The legislative has no control over the appointment and removal of judges
and the judiciary also has no direct control over the legislative.
▪ Article 63: the judiciary cannot question the validity of any proceeding in
either House of Parliament.
▪ Article 127: Parliament cannot discuss the conduct of a judge except by
motion given by not less than quarter of the total members of the
House.
38. RELATIONSHIP BETWEEN LEGISLATIVE
& JUDICIARY
However, in certain circumstances, there is still a relation between these
two organs:
➢ Parliament is not supreme and judicial review on constitutional
grounds is provided for – Article 4(1), Article 128.
➢ The application of judicial precedent assumes that the judiciary
has legislative role. Judges are under duty to apply and interpret
the law enacted by Parliament thus indirectly judges are also
making laws.
39. RELATIONSHIP BETWEEN JUDICIARY &
EXECUTIVE
➢ There is a clear demarcation of personnel between the 2 organs.
➢ No judge form part of the executive
➢ However, the appointment of judges & procedures of their removal
indicate the dominance of executive role.
➢ Judges are appointed by YDPA, acting on the advice of the Prime
Minister - Article 122B
➢ A judge can be removed by the YDPA on the recommendation of a
tribunal appointed under Article 125(3).
41. LEGISLATIVE PROCESS IN MALAYSIA
41
FIRST READING
When a Bill is first
introduced 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.
1
2
THIRD READING
Debate takes place and
amendments may be put
to a note. The House
then either passes or
defeats the Bill.
3
ROYALASSENT
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.
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
5
4
43. ADMINISTRATION OF JUSTICE: HIERARCHY OF COURTS
43
Federal court
Court of Appeal
Magistrates’ court
High Court
(Sabah & Sarawak)
Magistrates’
Court for
Children
Magistrates’
Court for
Children
High Court
(West Malaysia)
Magistrates’ Court
Sessions Court
Sessions Court
Penghulu Court
Native Court
Shariah Court
Shariah Court
SUPERIOR
COURTS
SUBORDINATE
COURTS
SPECIAL COURT
44. COURT SYSTEM
Courts are divided into two categories:
(i) Superior Courts:
◦ Federal Court
◦ Court of Appeal
◦ High Court
(ii) Subordinate Courts:
◦ Sessions Court
◦ Magistrates’ Court
◦ Magistrates’ Court for Children
44
45. Superior court: Federal Court (FCt)
❑ FCt replaced the Supreme Court in mid-1994 as the highest court.
❑ FCt is the highest court in Malaysia.
❑ Instituted by Article 121 of the Federal Constitution
❑ The Jurisdiction of the Federal Court:
✓ Determine a law made by Parliament or by the Legislature of a State is valid or
invalid.
✓ 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.
✓ 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.
46. Superior court: Court of Appeal
❑ Section 50 and 67 of the Courts of Judicature Act 1964
❑ The court can hear both Civil and Criminal appeal cases.
❑ Civil Appeal Cases
✓ Has jurisdiction to hear and determine civil appeals for cases where the
amount or value of the subject matter of the claim is more than RM
250,000.
✓ If the amount is less than RM250,000 the parties must get the permission
from the Court of Appeal.
❑ Criminal Appeal Cases
✓ Has jurisdiction to hear and determine any appeal against the decision of
the High Court.
47. Superior court: High Court (HC)
❑ Established under Article 121(1) of the Federal Constitution.
❑ There are 2 High Courts of co-ordinate jurisdiction in Malaysia:
1. High Court for West Malaysia
2. High Court in Sabah and Sarawak
❑ Each of the two High Courts is headed by a Chief Judge
❑ Sections 22, 23 and 24 of Courts of Judicature Act 1964 lay down the criminal and civil
jurisdiction of the High Court.
❑ Deals with offences punishable with death.
❑ The general jurisdictional rule in relation to criminal matters is reflected in Section
22(1)(a) of the Courts of Judicature Act 1964.
❑ Has unlimited jurisdiction to try all civil proceedings within the local jurisdiction of the
court.
48. Subordinate Courts: Session Court
Civil cases
❑ All suits where the amount in dispute or the subject matter does
not exceed RM 1,000,000.
❑ May entertain cases above RM 1,000,000 if it concerns motor
vehicles accident, landlord and tenant.
❑ May not entertain cases concerning divorce, bankruptcy,
enforcement of trust, specific performance, injunction. (determined
by the High Court).
Criminal cases
❑ All offences other than offences punishable with death. May
impose any sentence allowed except sentence of death.
49. Subordinate Courts: Magistrates’ Court
This court has the jurisdiction to hear civil cases and criminal cases. There are two (2) types
of classes of magistrate:
1. First Class Court:
❖ Criminal – To 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. (Sec 85 Subordinate Courts Act)
❖ Civil - To try all litigations where the matter in dispute or subject matter does not
exceed RM 100,000.00.
2. Second Class Court:
❖ Civil - Performs minor function i.e. granting bail, mentioning cases.
❖ Criminal – Only to deal with cases where the maximum punishment imposed is no
more than 12 months imprisonment or which is punishable with a fine only.
50. Subordinate Courts (Amendment)
Act 2010
❑ Sessions Court and Magistrates’ Court will have jurisdiction over civil claims
of up to RM 1,000,000.00 and RM 100,000.00 respectively.
❑ The Sessions Court is also conferred with the power to grant injunction,
declaration, specific performance, rescission of contract.
❑ However, only selected Sessions Court judges with adequate training and
experience will be tasked with hearing such applications.
51. Special Court
❖ The Special Court was established pursuant to Article 182 of the Federal Constitution to
hear any action civil or criminal instituted by or against the Yang di-Pertuan Agong or
any of the nine Malay Rulers.
❖ However, by Article 183 of Federal Constitution no action, civil or criminal, shall be
instituted against the Yang di-Pertuan Agong or any of the Rulers of States in respect of
anything done or omitted to be done by him in his personal capacity except with the
consent of the Attorney General personally.
❖ The decision of the Special Court is final and conclusive and cannot be challenged or
called into question in any court on any ground.
❖ The Special Court may sit at the premises of the Federal Court located at the Palace of
Justice, Putrajaya Wilayah Persekutuan on such dates and at such times as the Chief
Justice may from time to time appoint.
