Malaysian Legal System (Law 416)

INTRODUCTION

1.0 What is Law?

The word “law” is difficult to define, particularly as it is used in many different ways. It contains, however, the concepts of orderliness, universality and objectivity. The term ‘law’ is used in many sense, we speak of the laws of physics, laws of games, laws of state or law of traffic. When we speak about the law of the State we use the term “LAW” in a very special and strict sense, and this law may be defined as rule of human conduct, imposed upon and enforced among the members of a State.

When we speak of the law we usually imply the whole of the law, however it may have been formed, much of the Malaysian law has been created out of the English customs, but a great part of the law has been created by statute i.e. Act of Parliament.

Human being resorts to various kinds of rules to guide their life. Different people perceive law differently. For the lawyers, they see it as their exclusive preserve as laypersons depend largely on them to explain the intricacies of the law. For the average person he may see it as a nuisance for having to comply with various procedures, which he or she does not understand.

Thus moral rules and ethics remind us that are immoral or wrong to tell lies or engage in drugs or to get involved in a brothel business. If we breach these moral and ethics we may lose friends or their respect.

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

1.2 What is justice?
In Malaysia we practice adversarial system, which means that it is the parties through their advocates who control the course of inquiry. The parties decide what evidence shall be adduced subject to the rules of admissibility and it is on the basis of the admissible evidence adduced by the parties that the court must come to a decision. The judge acts as an impartial referee, there to ensure that the parties comply with the rules of procedure and evidence in presenting a case.

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.

1.3 Rule of Law
The rule of law is the essential doctrine of the British Constitution. It is not written code of rules but the general principle implicit in the common law which the courts will apply, unless some statute can be quoted modifying the application. The rule of law cover three essential aspects.:-

a. no person can be punished except for a definite breach of law, established in the ordinary law courts of the land
b. No person is above the law and everyone must bear the legal consequences of his own act. Equality before the law.
c. There is an absence in the UK of any special body of courts to try cases where the citizens is in conflict with the government unlike in France where litigation between citizens and state officials is dealt with by special administrative courts.

It is often stated that it is from the principle of the rule of law, all forms of liberty, persons liberty. liberty of speech and freedom of press are derived.

1.4 Classification of Law
Law can be classified into various areas. Generally speaking it ca be categorized into three main areas.

Public Law and Private Law
Substantive Law and Procedural Law
Private International and Public International Law

1.5 Public Law

Public law regulates the relationship between the citizen (an individual or group of people) and the State. Example. In a murder case where Daniel murdered Budin. Therefore here Daniel has committed a crime which is against the State (King’s law) – R v Daniel. (R= REX). Public law is divided into constitutional law, administrative law and criminal law.

Constitutional Law – defines the structure of the principal organs of government and their relationship to each other, and determine their principal functions and the rights of individual under that government. Example in Malaysia:

Article 6(1) of the Federal Constitution:- says no person shall be held for slavery.

Article 8(1) of the Federal Constitution: - says all person are equal before the law and entitled equal protection of the law.

Administrative Law – is defined as that body of legal principle which concerns the rights and duties arising from the impact upon the individual of the actual functioning of the executive instrument of the government. In synopsis we can terms it as the law that 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. Crime is defined as of disobedience of the law forbidden under pain of punishment. The punishment for crime ranges from death or imprisonment to a money penalty or absolute discharge

1.6 Private Law

Private law deals with the relation between one citizen and another citizen. 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 damages or compensation Example where Intan and Hezrynda entered an agreement and Hezrynda breached the contract. Here Intan has a cause of action against Hezrynda. In this situation Intan will be the Plaintiff because she is the one who is initiating the action and Hezrynda will be the defendant. Intan v Hezrynda

1.7 Substantive Law

Substantive law is the statutory or written law that governs rights and obligations of those who are subject to it. Substantive law defines the legal relationship of people with other people or between them and the state. Substantive law stands in contrast to procedural law, which comprises the rules by which a court hears and determines what happens in civil or criminal proceedingsIt the body of rules of law in the above branches. Substantive law defines crimes and punishments (in the criminal law) as well as civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process Thus , murder is common rule offence. Bigamy is a statutory offence and Passing off is a tort at common law.

1.8 Procedural Law

Procedural law deals with the method and means by which substantive law is made and administered. The time allowed for one party to sue another and the rules of law governing the process of the lawsuit are examples of procedural laws..t lays down the rules governing the manner in which a right is enforced under civil law, or a crime prosecuted under the criminal law. A legal action is started by a writ in civil cases and by summons in criminal cases.

1.9 International Law

Includes Private and Public International Law.

Public international law deals with relationship between states. E.g. Border, territorial waters etc. Certain writers hold that there is no world authority with power to enforce the rules or the laws.

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. Thus Nurul, a Malaysian national, makes a contract in Madrid with Jeniffer. If Nurul wants to take an action against Jeniffer, the court will have to determine by the rules of the private international law which law is to be applied. Malaysian or Spanish law?


1.10 SOURCES OF LAW

The main sources of law in Malaysia can be categories as follows

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. Principles of English Law
g. Judicial Precedent/
h. Islamic Law

1.10.1 FEDERAL CONSTITUTION

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? How supreme is Parliament?


1.10.2 THE STATE CONSTITUTION

The 13 States of Malaysia have individual constitutions, which provide for a single chamber Legislative Assembly in each state. A Menteri Besar or a Chief Minister heads the government. (In the Malay States a cabinet known as the Executive Council assists the Menteri Besar) In Sabah & Sarawak, members of the Executive Council are known as State Ministers.


1.10.3 LEGISLATION

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.


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.

1.10.4 ENGLISH LAW

The supremacy 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) e.g. Section 3 and 5 of the Civil Law Act 1956 provide that English law relating to contract is applicable in Malaysia in relation to areas not covered by our legislation or our case law. Our courts have also tended to look towards the English Law to aid them in the interpretation of the Contract act.


1.10.5 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.

1.10.6 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

1.10.7 SYARIAH LAW

Is the body of Islamic law. The term means "way" or "path"; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence Applicable to Muslims only and administered in the Syariah Courts. The courts possess civil jurisdiction over offences by Muslim against the religion.

1.10.8 THE DOCTRINE OF STARE DECISIS ET NON QUIETA MOVERE / BINDING PRECEDENT

The doctrine of Stare Decisis is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie").Why do lawyers cite previous cases from thick volumes in their arguments before the court? The answer is because the common law The doctrine of binding precedent or stare decisis is central to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada and New Zealand. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine, states that within the hierarchy of the courts a decision by a higher court will be binding on those lower than it. This means that when judges try a case they will check to see if a similar case has come before a court previously, and if there was a precedent set by an equal or higher court, then the judge should follow that precedent. If there is a precedent set in a lower court, the judge does not have to follow it, but may consider it. The Federal Court however does not have to follow its own precedents.

Only the statements of law are binding, this is known as the reason for the decision or ratio decidendi, all other reasons are by the way or obiter dictum see Rondel v. Worsley (1969) 1 AC 191. A precedent does not bind a court if it was found there was a lack of care in the original “Per Incuriam”, for example if a statutory provision or precedent had not been brought to the court's decision. If a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy, they may be persuasive but are not binding ,. Most importantly precedents can be overruled, by a subsequent decision by a higher court or Act of Parliament, Judicial ruling is retrospective, whereas Act’s of Parliament are always Prospective unless stated.

The last situation brings about the greatest problem of the precedent system, in that if a higher court overrules a precedent that is quite old, then it is very likely that many cases that have been decided upon that precedent will return to court. Therefore, it becomes increasingly unlikely that a precedent is overruled the older it is is found in decision of the superior court. Judges are obliged to decide the case before him by reference to a previous decision when the conditions for the operation of the doctrine of precedent are satisfied. These are the previous decision decided in the previous case, so far as its ratio decidendi is concerned, relevant to the determination of an issue of law in the case in question, and that the prior court’s decisions are authoritative for his court, it is a court which is superior to his hierarchy.

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. E.g. 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.


1.11 THE LEGAL INSTITUTION

YDPA



Legislative Executive Judiciary



Constitutional law is concerned with government in a state. If a question is asked what government is, we are likely to think of various official powers which are exercised over us or in short we can say they are the power organizing structure.

In Malaysia it would be simple enough to classify the activities referred to the above as legislative, executive or judicial. As the terms is generally employed, the legislative activity involves the enactment of general rules for the individuals and groups in society. The executive function is harder to define, but includes actions taken for the maintenance of order, in the implementation of the law, for the defense of the state, in the conduct of external affairs, and in the administration of internal policies. Finally the judicial function involves the determination of issues of fact and the interpretation of law and dealing with crimes or civil causes by the application of the law to them.

Sometimes the three functions may be viewed as a combination or sequence. For example it is the legislative power to increase income tax. Executive action will is involve in the collection of the arrangements for the tax collection and the judicial proceedings may be involved when persons are found evading tax payment. The three functions can be described as making law, applying law and enforcing law. But some of the activities which we would classify as executive, including the general conduct of foreign policy, do not involve the execution of law at all.

The terms which we have been using, which categorizes the functions of government as legislative, executive and judicial, has become commonplace in the description of constitutional arrangements. The terms have been derived from a doctrine which was developed in the seventeenth centuries in England and this doctrine is commonly known as doctrine of separation of powers. It is also natural to use the terms because in many states there seem to be institutions whose primary functions correspond to one of these three kinds of activity, whether it is under the influence of the doctrine or not.



Doctrine of Separation of Power

The doctrine of the separation of powers is most often associated with French writer Baron de Montesquieu but it would be a mistake to think that he invented it. The model was first developed by the ancient Greeks in the constitutions that governed their city-states. However, it first came into widespread use by the Roman Republic. It was outlined in the Constitution of the Roman Republic.The doctrine of the separation of power is not a legal principle, but a political theory.

The doctrine includes a proposition about the functions of government, and discussion of the forms and functions of government may be traced back to ancient Greece. In Aristotle’s politics, he distinguishes three elements in every constitution, which he classified as the deliberative, the magisterial, and the judicial



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.

1.12 THE LAGISLATIVE PROCESS IN THE MALAYSIAN PARLIAMENT

The Bill introduced to parliament may be classified as:

a) Private Bill’s
b) Private Member Bills
c) Hybrid Bills
d) Government Bills

The Bill is normally presented by the Minister to the Parliament A Bill introduced in either House in accordance with Parliamentary procedure as prescribed by the Standing Orders usually goes through 4 stages:


1.The First Reading
2. The Second Reading
3. The Committee Stage
4. The Third Reading

To introduce a bill, it is required to give notice to the Clerk of the relevant House before which he intents to introduce it. Bills may be classified as Private Bills, private member’s Bills, hybrid bills or government Bills.

At the first reading, the Minister merely mention the title of the Bill and then proceeds to give oral notice as to when he wishes to move the Second Reading. There is a debate or amendment at this stage of the proceeding which are but a mere formality.

This motion, moved by the Minister, requires to be seconded. By the time this motion is move, the Bill will have been printed and circulated to all members of the House. Otherwise, the Bill cannot be presented. It is as this stage that debate on the Bill is carried out.

At the end of the Second Reading, the Bill is committed Committee of the whole House. In effect, the House resolve itself into a Committee on the Bill. This is called a Committee Stage and it is intended to allow members the opportunity to discuss detail of the Bill and to propose amendment in a less formal proceeding. When discussion is completed in Committee, the Minister move a motion to report the bill under consideration to the House. If the motion is accepted, the House will resume sitting and this brings the Committee Stage to an end.

When the house resume sitting, the minister reports that the Bill has been considered and accepted by the Committee with or without amendment. When a Bill has been passed in the manner describe above in either House, it is then transmitted or send to the other House for Consideration. When the has been considered by the other House in a similar fashion, it is return to the House from which it originated. The motion is the final step and article 68 of the Federal Constitution will become operative.

According to article 68, the Bill may be presented to the Yang di-Pertuan Agong for his assent after the lapse of one month if it is a Money Bill and twelve months if it is not a Money Bill. However, this primacy of the House of Representatives over the Senate does not exist in the event of a Bill amending the Constitution. Constitutional amendment requires the concurrence of both chambers. The function of the Senate is general legislation is of a revising nature with no real authority to reject measures passed by the House of Representative.

Although a Minister normally introduces a Bill, there is nothing to prevent any member either of the government or the opposition from introducing a Bill, but such a move is unlikely to succeed unless it commands the support of the government. Bill may originate from either House with the exception of a Bill or and amendment concerning any of the matters enumerated in article 67, such a taxation and expenditure, which must be moved by a minister in the House of Representative.

The legislative procedure in the State Assemblies is almost similar to that in the Federal Parliament with some local variations. Bill are passed by the one-chamber by Legislative Assembly and assented to by the Ruler or Yang di-Pertua Negeri before becoming law, and no law can come into force until it is published. Bills requiring expenditure from the Consolidated Funds have to be introduced by a member of the Executive Council. State Constitution, with certain exceptions may also be amended on the same format as an amendment of the Federal Constitution, that is, supported on the second and third reading by at least two-third of the total number of members. The constitutional provisions affecting succession to the throne in the Malay State may not be the subjects of amendment by the State Legislature.


1.12.1 Voting

A Bill is adopted by a simple majority vote of those members present and voting. There are several exception to this rules, the most significant being constitutional amendment in accordance with article 159 of Federal Constitution. Bill shall not been passed in either House of Parliament unless it has been supported on the second and third readings by the votes of not less than two-third of the total number of members of that House.


1.12.2 Royal Assent

The Yang di-Pertuan Agong is an integral part of Parliament. His assent is normally before a Bill becomes law. Royal Assent is not effect within a time specified, the Bill becomes law as if it had been assented. Prior to the amendment, there was no evidence to suggest that the Royal veto over a proposed federal law has ever been official existed.






1.12.3 SUMMARY ABOUT HOW A BILL BECOME A LAW


(I) First Reading
When a bill is first introduced in one of the two houses, only its title is actually read. After the Bill is passed at this stage, its text is printed and distributed.

(2) Second Reading
Members debate the Bill. If accepted, it is passed on for consideration by a committee of the house.
(3) A Committee of The 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 Bills goes on to a third reading in the house.
(4) Third Reading
Debate takes place and amendments may be put to a vote. The house then either passes or defeats the Bills.
(5) Other House
When a Bill has passed one house, it is send to other house, where it follows a similar pattern. If the second house amend the Bill, the Bill must be returned to the first house for it approval
(6) Royal Assent
When the Bill ha passed both house with accordance with article 68, it is sent to Yang di- Pertuan Agong For the Royal Assent. The bill becomes a law upon publication.


1.13 Jurisdiction of the Courts

As a general rule civil and criminal courts are open to public. When an accused person has committed a criminal offence and does not plead guilty, he will be tried in a court of competent jurisdiction. The court which administer civil and criminal justice are those constituted under the constitution, or the Courts Judicature Act 1964 or by Subordinate Courts Act 1948 or by any other law presently in force.



1.13.1 Penghulu’s Court.

Trail Jurisdiction.

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.

Sentencing Jurisdiction

Section 96 Subordinate Courts Act 1948 The penghulu can impose fine not exceeding RM25/-


1.13.2 2nd Class Magistrate

Trail Jurisdiction.
Criminal

Section 88 Subordinate Courts Act 1948 2nd Class Magistrate can try offences punishable with:
a) imprisonment not exceeding 6 months; or
b) a fine only

Sentencing Jurisdiction

Section 89 Subordinate Courts Act 1948 2nd Class Magistrate can punish an offender with:
a) imprisonment not exceeding 6 months, or
b) a fine not exceeding RM 1000; or
c) both

Civil
Section 92 Subordinate Courts Act 1948 – monetary jurisdiction up to RM 3000.00

1.13.3 1st Class Magistrate

Trail Jurisdiction

Section 85 Subordinate Courts Act 1948 – 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 Subordinate Courts Act 1948 – 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.


Sentencing jurisdiction:

Section 87 (1) Subordinate Courts Act 1948 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/-

Civil

Section 90 Subordinate Courts Act 1948 – Monetary jurisdiction up to RM 25,000.00

1.13.4 Sessions Court

Trail Jurisdiction

Criminal

Section 64 Subordinate Courts Act 1948 A Sessions court can try any offences except those punishable with death
Sentencing Jurisdiction

Section 64 Subordinate Courts Act 1948 can pas any sentence except death



Civil

a) Section 65(1)(a) Subordinate Courts Act 1948 - Unlimited monetary jurisdiction in respect of motor vehicle accidents and landlord and tenants dispute and distress.
b) Section 65(1)(b) Subordinate Courts Act 1948 – On other matters monetary jurisdiction up to RM250,000.00
c) Section 66(1) Subordinate Courts Act 1948 – This Court may try matter even if a counter claim exceeds Plaintiff’s claim but this court will not give judgement in excess of the monetary jurisdiction limit .
d) Section 66(2) Subordinate Courts Act 1948. The High Court has the power to or make an order the matter to be transferred to the High Court.


1.13.5 High Court

Trial Jurisdiction
Criminal

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.


Civil

The High Court has no monetary limits and can try any case with any amount of money. The High court can try all matters except which is expressly excluded by the Federal Constitution.