INTRODUCTION TO MALAYSIAN LEGAL SYSTEM, THE CONCEPT AND SOURCES OF LAW
The word law is so difficult to define, particularly as it is used in many different ways. Law performs various functions in society and its pervasiveness may impinge our lives. Amongst others, we are compelled by law to have a birth certificate and an identity card etc
What is justice?
Justice refers to fairness or rightfulness. However, what is justice in Malaysia may not necessarily mean justice in other parts of the world. Justice must not only must be done but seen to be done. That’s why we have open court system.
CLASSIFICATION OF LAW
Law may be divided into :
Public law regulates the relationship between the citizen and the State. Example. In a murder case where Azizul murdered Samdan. Therefore here Azizul has committed a crime which is against the State (King’s law) – R v Azizul. (R= REX). Public law is divided into constitutional law, administrative law and criminal law.
Constitutional Law – defines the structure of government and the right of individual under that government.
Administrative law – regulates the duties and exercise of powers by administrative authorities.
Criminal Law – deals with acts or omissions which are offences against the State and for which the offender is liable to be tried and if found guilty, will be punished according to the law.
2. Private Law
Private law deals with the relation between a citizen and another. It is also known as Civil law. It includes contract, Family Law, Tort, Land Law and commercial law in general. Legal action may be commenced or initiated by individuals seeking for damage or compensation Example where Azizul and Samdan entered an agreement and Samdan breached the contract. Here Azizul has a cause of action against Samdan. Azizul v Samdan.
Includes Private and Public International Law.
Public international law deals with relationship between states. Eg. Border, territorial waters etc.
Private International law is concerned with the application of various national laws of the facts of a particular case involving two or more countries eg. System of law applicable to a marriage between 2 different nationals in a third country
SOURCES OF LAW
The main sources of law are:-
a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Judicial Decision
g. Principles of English Law
h. Islamic Law
Malaysia has a written constitution unlike the United Kingdom. The Federal Constitution is the supreme law of the land. Generally, any law which is inconsistent with the Federal Constitution is invalid. The Malaysian Parliament functions under a written constitution and is governed by it. Its law making power is limited by the provisions in the constitution. However our Parliament as a legislative body has the capacity to amend , repeal and make new constitution by way of two third majority vote of the both houses of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution also establishes a constitutional Monarchy and a Federal System of Government.
In England Parliament is Supreme and has full power to make law on any matter.
According to Dicey:
‘ The Principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’
How far is this true after the signing of treaty of Rome in 1972?
THE STATE CONSTITUTION
The 13 States of Malaysia have individual constitutions which provide for a single chamber Legislative Assembly in each state. The government is headed by a Menteri Besar or a Chief Minister. (In the Malay States the MB is assisted by a cabinet known as the Executive Council) In Sabah & Sarawak, members of the Executive Council are known as State Ministers.
It refers to laws made by a person or body which has power to make law. In Malaysia, Parliament and Legislative Assemblies have powers to enact laws in their respective areas. Laws made by Parliament may extend to the whole country. However, laws enacted by a State Assembly only apply to that particular state only.
Examples: Act - Federal Law made by Parliament
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently.
The legacy of English Law remains in Malaysia even after independence. The English Law is adopted so far as they were suitable to local conditions. Many of the local laws especially those affecting trade, commerce and banking were patterned on English Models (or in some instance other colonial laws)
SUBSIDIARY LEGISLATION/ DELEGATED LEGISLATION
Also known as delegated legislation. A statute will confer power on an authority for it to enact rules and regulation. An example of delegated legislation is the parking by laws enacted by various councils under powers conferred on them by the State Local Government Enactments.
THE COMMON LAW
Refers to law laid down by judges sitting in the Superior Courts as distinct from statute law enacted by the legislative.- Judge made law. This system was inherited from England
Applicable to Muslims only and administered in the Syariah Courts. The courts possess civil jurisdiction over offences by Muslim against the religion.
THE DOCTRINE OF JUDICIAL PRECEDENT
Why do lawyers cite previous cases from thick volumes in their arguments before the court? The answer is because the common law is found in decision of the superior court. Judges lay down rules when giving the decisions and these rules are precedents which must be followed in similar cases.
What about Malaysia? Do we adhere to these principles of judicial precedent? Even when we have statutes, we still look to the judges interpretation of the law. The statute must be read in the light of decided cases.
Judges are required to follow a system, which provides for consistency and certainty in decision. A judge’s decision in an earlier and similar case constitutes a precedent and may be binding depending on the hierarchy of the courts concerned. Eg the decision of the Federal Court is binding on the other courts, but the decision of the High Court is binding on the lower courts and not on the Court of Appeal and Federal Court.
Can a Federal Court Judge divert from a previous Federal Court decision ?
COURT OF APPEAL
HIGH COURT OF MALAYA HIGH COURT OF SABAH & SARAWAK
MAGISTRATES COURT 1
MAGISTRATES COURT 2
The Judiciary hears and determines civil and criminal matters, and pronounces on the legality of legislative and executives acts. It may also interpret the Federal Constitution and State Constitution.
The High Court of Malaya and Sabah & Sarawak, the Court of Appeal and the Federal Court are superior courts. The general rule is that the Jurisdiction of the courts increases as one moves upwards .
There are also several specialised tribunals exercising judicial and quasi judicial functions eg. Industrial Court and Court Martial. These courts provide an inexpensive and specialised means of settling disputes between the parties.
Jurisdiction of the Courts
Section 95 Subordinates Court Act 1948 provides that :
The Penghulu’s court can try minor offences listed in the ‘Surat Kuasa’ and punishable with a fine not exceeding RM 25/-. The Offender must be an Asian.
Section 96 SCA ’48 The penghulu can impose fine not exceeding RM25/-
2nd Class Magistrate
Section 88 SCA ’48 2nd Class Magistrate can try offences punishable with:
a) imprisonment not exceeding 6 months; or
b) a fine only
Section 89 SCA ’48 . 2nd Class Magistrate can punish an offender with:
a) imprisonment not exceeding 6 months, or
b) a fine not exceeding RM 1000; or
1st Class Magistrate
Section 85 SCA ’48 – 1st Class Magistrate can try offences:
a) punishable with imprisonment not exceeding 10 years, or
b) punishable with fine only or
c) under Section 392 Penal Code i.e robbery on the highway between sunset and sunrise punishable with a maximum of 14 years imprisonment, or
d) under Section 457 Penal Code i.e. house breaking at night to commit theft punishable with a maximum of 14 years imprisonment.
Section 83 SCA ‘ 48 – 1st Class Magistrate can:-
a) issue warrants, summons or other processes of the court;
b) make orders relating to adjournments, remand, bail and transfer of the case to the sessions court;
Section 9 Criminal Procedure Code gives power and authority to the Magistrate:-
a) to hear criminal trials
b) to issue warrants, summons or other processes of the court
c) make orders relating to adjournments, remand, bail and transfer of the case to the sessions court
d) to hold inquiries of death.
Section 87 (1) SCA ‘ 48: 1st Class Magistrate can punish the offender with:
a) imprisonment not exceeding 5 years; or
b) fine not exceeding RM 10,000/-; or
c) whipping up to maximum 12 strokes
d) a combination of (a)-(c)
e) in a civil matter the Magistrate can fine up RM 25,000/-
Section 64 SCA ‘ 48 A Sessions court can try any offences except those punishable with death
Section 64 SCA ‘ 48 can pas any sentence except death
Section 22 Court Judicature Act 1964 - a High Court can try any offences and offences under Chapter VI of the Penal Court and under any written law
Court may pass any sentence allowed by law including death.