SOURCES OF LAW INTRODUCTION TO THE MALAYSIAN LEGAL SYSTEM SOURCES OF LAW The sources of Malaysian law refer to the legal sources i. e. the legal rules that make up the law in Malaysia. The sources of Malaysian law comprise: 1)Written law; and 2)Unwritten law Federal and State Constitutions Written Legislations & Delegated Legislations SOURCES OF MALAYSIAN LAW Judicial Decision English law Unwritten Islamic law Customary Law SOURCES OF LAW: UNWRITTEN LAW Unwritten law is the portion of Malaysian law which is not being enacted by the Parliament or State Legislative Assemblies and is not found in the Federal & State Constitutions.
It is found in cases decided by the courts, local customs etc. – The unwritten law comprises the following: – i. Principles of English law applicable to the local circumstances. ii. Judicial decisions of a superior courts e. g. the High Courts, Courts of Appeal and the Federal Court. iii. Customs of the local inhabitants which have been accepted as law by the courts. iv. Islamic law UNWRITTEN LAW – ENGLISH LAW English law comprises of the common law, the rules of equity and statutes :The common law is the unwritten law which was developed by judges in England based on customs and usages of the society.
The common law is recognized and enforced through decisions of courts rather than through parliament or the executive branch of the government. The rules of equity is a body of legal rules formulated and administered by the Court of Chancery in England to supplement the rules and procedures of the common law. Statutes are the laws which are enacted by the legislature/parliament. Reception and Application of English Law in Malaysia ? Started with the informal reception in the Straits Settlement. ? Led to the Malay States through the intervention of the British Resident and advisors. As for the Borneo states since they became British protectorates in 1888, they too informally received English Law. ? The English Law was formally received under three statutes: ? Civil Law Ordinance 1956 for Peninsular Malaysia ? Application of Laws Ordinance 1951 for Sabah ? Application of Laws Ordinance 1949 for Sarawak ? All the three statutes are now incorporated into the Civil Law Act 1956 ? The principles of English law can be applied in Malaysia by virtue of section 3 and 5 of the Civil Law Act 1956.
It provides for the application of the principles of English law in Malaysian courts provided that: ? i) there is a lacuna in law, and ? ii)the principles of English law is suitable to the local circumstances. ? Lacuna = a blank gap or missing part ?Sec. 3(1)(a) of the Civil Law Act 1956 provides that the Court shall in West Malaysia apply the English common law and rules of equity as administered in England on 7 April 1956. This means that only English law, which was used in England as at 7 April 1956 can be used in West Malaysia.
Further development of English law after this date cannot be so applied. However, they may be persuasive, especially in the absence of local statutory provisions or case law. ?Sec. 3(1(b) of the the Civil Law Act 1956 provides that the Court shall in Sabah apply the English common law, rules of equity and statutes of general application as administered or in force in England on 1 December 1951. ?As for Sarawak , sec. 3(1)(c) of the Civil Law Act 1956 allows the Court to use English common law, rules of equity and statutes of general application in force in England on 12 December 1949. English Commercial Law ? As for English commercial law, sec. 5(1) of the Civil Law Act 1956 provides that for West Malaysia (except for Penang and Malacca), the principles of English commercial law as at 7 April 1956 shall be applied in the absence of local legislation. ? As for the states of Penang, Malacca, Sabah & Sarawak – sec. 5(2) of the Civil Law Act 1956 provides that the principles of English commercial law as at the date on which the matter has to be decided is to be used, where there is no Malaysian legislation on that area. However, as there are an increasing number of Malaysian statutes on commercial law, sec. 5 Civil Law Act 1956 is of diminishing importance. ? The local circumstances clause in sec 3 Civil Law Act 1956 is absent in sec 5 Civil Law Act 1956 , but in practice, sec 5 has been interpreted as if it is subject to this clause as – Shaik Sahied bin Abdullah Bajerai v Sockalingam Chettiar (1933) Section 5 [Specific Application Commercial Matters] ? S 5(1) – All West Malaysia states (Except Penang & Malacca) apply English Commercial Law including statutes on 7/4/1956 S 5(2) – Penang, Malacca, Sabah & Sarawak apply the relevant and applicable English Commercial Law on the date of trial HIERARCHY OF COURTS IN MALAYSIA Federal Court Courts of Appeal High Courts Sessions Courts Magistrates’ Courts Penghulu‘s Courts UNWRITTEN LAW – JUDICIAL PRECEDENT court decisions which make up the ? Judicial decisions are common law of a country. The courts make law by applying the existing law to new situations and by interpreting legislations. Judicial decisions form part of the law of Malaysia through the doctrine of judicial precedent. A judicial precedent is commonly defined as “ a judgment or decision of a court of law cited as authority for the legal principle embodied in its decision”. ? Doctrine = a principle The Doctrine of Judicial Precedent. ? This doctrine states that an earlier decision of a higher ranked court is binding on a later lower ranked court, if the facts in both cases are similar. Thus the cases heard in a higher ranked court lay down legal principles which must be followed by the lower ranked court. Once a precedent is made, it remains binding unless and until overruled by a later decision. The doctrine of judicial precedent is based on the principle of stare decisis, this means that like cases should be treated alike. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions although there are exceptions. ? stare decisis = stand by what has been ? This practice of following precedent is also known as stare decisis (stand by what has been decided).
It is a legacy of the English common law system. ? If a judge fails to follow a binding precedent, the decision will be legally wrong and it is likely to be reversed on appeal. Where there is no appeal, it can be overruled in a later case. ? The general rule is, where the subsequent case is in pari materia The Application of the doctrine of Binding Precedent in Malaysia to the earlier case: a) Courts of lower rank in Malaysia are bound to follow the decisions of the courts of higher rank in this country. However, there are exceptions: I.
When there is a conflict of decision between higher courts of the same rank : in the case of two conflicting decision of the Court of Appeal, the lower court is entitled to decide which one to follow; in the case of two conflicting decision of the Federal Court the lower court must follow the later decision (because it represents the existing state of the law). Dalip Bhagwan Singh v PP (1998) In pari materia = upon the same matter or subject I. The decision of the higher court though not expressly overruled, cannot in the opinion of the court stand with a decision of the Federal Court. II.
Distinguishing precedent – a judge may distinguish the case when there are material differences in facts between the case before him and the case laying down the precedent. ? Hierarchy of the Courts: Federal Court v Court of Appeal v Superior Cts. High Court v Sessions Court v Magistrates’ Court Subordinate Cts. ? Only superior courts are entitled to set up judicial precedents whereas the subordinate courts are duty bound to follow precedents. ? The Federal Court ? The highest ranking court and the final appeal court. ? The decisions of the Federal Court are binding on all lower Courts. The Federal Court is only bound by its own decision in civil cases. ? Decision of The Court of Appeal ? The Court of Appeal is bound by the decision of the Federal Court. ? The Court of Appeal’s decision is binding on all lower courts, including the High Court. ? The Court of Appeal is also bound by its own decision ? Decision of The High Court ? The High Court decision is binding on all subordinate courts. ? The High Court is not bound by its own decision. ? Decision of The Subordinate Court ? The Sessions Courts and Magistrates’ Courts are bound by the decision of the Superior Courts. The Sessions Court and Magistrates’ Court decisions are not binding on any court, including themselves . UNWRITTEN LAW – CUSTOMS ? The regular pattern of social behaviour, accepted by a ? ? ? ? given society as binding upon itself. Customs are proved through repeated acts practiced over a long period of time, leading to the conclusion that by common consent they have become the accepted norm, or the law of the place, to the exclusion of ordinary law. In Malaysia, the term is also known as adat or ‘native law & custom’ Art 160 of Federal Constitution includes ‘customs & usages having the force of law’ in the definition of law.
This definition distinguished between customs that have legal consequences and those that do not. ? There is no common customary law for all communities. ? Malays – Adat Perpatih & Adat Temenggung ? Natives of Sabah & Sarawak – Native law & custom ? Chinese – Chinese Customary law ? Indian – Indian Customary law ? Customary law consists of customs and traditions including Malay adat, old Chinese and Hindu customs and native law. UNWRITTEN LAW – ISLAMIC LAW ?- Islamic law is another important source of Malaysian law.
It refers to the legal rules that are part of the Syariah and enacted as legislation in accordance with the Federal and State Constitution. incorporation of Islamic principles into land laws and banking laws. Islamic law applies to all Muslims and of particular importance are the laws relating to family matters (marriage & divorce) & division of assets/properties of the deceased persons. ? It is increasingly being applied in our local laws e. g. through the ? In Malaysia the Islamic law applied is of the Shafii school of jurisprudence (mazhab), with some modification by Malay adat (customary) law. Islamic law is applicable only to Muslims and is administered in the Syariah court. Except for the Federal Territories, the states have the power to administer the Islamic law. ? Article 121(1A) of the Federal Constitution states that the civil courts have no jurisdiction in respects of any matter within the jurisdiction of Syariah court. It posseses civil jurisdiction in proceedings between parties who are Muslims, and limited criminal jurisdictions over offences by Muslims against religion. ? The Sources of Islamic law are: The Quran, Sunnah, Ijma’, Qiyas etc. SOURCES OF LAW: WRITTEN LAW –
Written law is the most important source of law in Malaysia. It is in writing and includes the following: the Federal and State Constitutions, legislations and subsidiary/delegated legislation Federal Constitution is the supreme law of the country and no law can go against it. It sets out the structure of the government and states that Malaysia is a system of parliamentary democracy with no separation of legislative and executive branch. However, the judiciary is a separate branch. The Federal Constitution also states the basic rights of every citizens, such as rights to education, citizenship rights and voting rights.
There is also freedom to practice one’s own religion, although Islam is the religion of the Federation. – – – – The State constitution sets out the structure of the state governments and provides for the existence of a State Legislative Assembly in each state. The function of the state Legislative Assembly is to enact laws for the state. Legislation is enacted by the Parliament at federal level and by the state Legislative Assembly at the state level. The Federal and State legislatures are not supreme as they can only enact laws in accordance with the stipulated procedures in the Federal and State Constitutions.
Law made by the Parliament is called an ‘Act’ while law made by the State Legislative Assemblies is called an Enactment or Ordinance. Subsidiary or delegated legislation arises when parliament delegates its rights to make law to another body such as the Minister concerned or a local authority. These laws are known as regulations or by-laws. There is a need for delegation as the Parliament’s time is limited and sometimes specialized expertise in certain areas of the law is required WRITTEN LAW – FEDERAL CONSTITUTION ? The meaning of the term ‘Constitution’ It is used in two senses: ?
The body of legal and non-legal rules concerning the government of a state ? A single written document having special legal status, which establishes the state, and sets out the structure and powers of the state ? In Malaysia, there are 13 states and three federal territories ? There is one Federal Constitution and 13 States Constitutions ? The Federal Constitution is the supreme law of the land. – The FC sets out the structure of the country’s government and states that Malaysia applies the system of parliamentary democracy. It lays down : i) the power of the Federal and State Governments ii) fundamental rights of ndividual such as the rights to education, voting & freedom to practice one’s own religion, although Islam is the official religion of the country. iii) Citizenship iv) the judiciary v) Financial provisions vi) Public Services vii) Relationship between Federation and the States viii) etc. WRITTEN LAW – STATE CONSTITUTION ? Each state has its own constitution. ? This constitution regulates the government of that particular state. ? The powers of a state is provided in the ‘State List’ of the Federal Constitution. Example of matter which falls under the State List is Islamic personal and family laws. WRITTEN LAW – LEGISLATION Also known as primary legislation ? Refers to law enacted by: ? Parliament – at federal level ? State Legislative Assemblies – at state level ? Article 74(1) –Parliament makes laws on matters listed in the Federal List or Concurrent List ? Article 74(2) – State Legislature makes laws on matters listed in the State List or Concurrent List. ? Article 75 – if state law inconsistent with federal law the federal law prevails. Types of Legislation ACTS Enacted by Parliaments ENACTMENTS Enacted by State Legislative Assemblies ORDINANCES Promulgated by the YDPA During Emergency & Laws enacted by Sarawak State Legislative Assembly Laws enacted by the Parliament btw 1st Apr 1946 – 10th Sept 1959 ? Also known as delegated/ subordinate legislation ? Law made through powers delegated by the legislature to a WRITTEN LAW – SUBSIDIARY LEGISLATION body or person via a parent statute ? Sec 3 of the Interpretation Act 1948 & 1967 defines SL as: ? ‘Any proclamation, rule, regulation, order, notification, bylaw or other instrument made under any Act, Ordinance or other lawful authority & having legislative effect. ’ ? Why SL is needed: i. The legislature has insufficient time ii.
Better to leave the highly technical aspect of the legislation to the experts or administrators on the job iii. The legislature is not continuously in session & the procedures are cumbersome The Federal Constitution The general features of the Malaysian Federal Constitution: ? The Supremacy of the Federal Constitution. – In Ah Thian v Government of Malaysia (1976), Suffian LP pointed out that the doctrine of Parliamentary Supremacy does not apply in Malaysia. Here we have a written constitution. The power of Parliament and state legislatures in Malaysia is limited by the Constitution. The legislature, the executive and the judiciary and all institutions created by the Federal Constitution and deriving their powers from it are subject to the provisions of the Federal Constitution. – Article 4(1) of the FC declares that the FC is the supreme law of the federation and any law passed after the merdeka day that is inconsistent with FC is (to the extent of the inconsistency) void. – Art 162 – pre merdeka laws shall be applied with such modifications as may be necessary to make them accord with the FC – In Dewan Undangan Negeri Kelantan & Anor v. Noordin Bin Salleh & Anor.
The Supreme Court declared that a law passed by the Kelantan State Legislative Assembly to be void as the said state law contravened the provisions of the Federal Constitution that guaranteed the freedom of association. ? Fundamental Liberties/ Basic Human Rights ? The Constitution highlights and safeguards certain fundamental human rights essential for the continuance of human race. ? The constitution protects our freedom an restrains any law or any other power from encroaching and taking away our basic rights. ? Examples: o Article 5 – No one shall be deprived of his life or personal iberty except through the provisions of law. A person may not be unlawfully detained, he must be informed of the ground of his arrest and must be produced before a Magistrate within 24 hours. o Article 6- prohibits slavery and forced labour. o Article 7- protects against retrospective criminal laws and repeated trials. o Article 8 –provides for equality before the law and equal protection of the law. o Article 9 – provides for freedom of movement o o o o Article 10 – freedom of speech, expression and association. Art 11 – Rights to profess & practice & propagate religion Art 12 – Rights of education Art 13 – Rights to property
Restraints… ? Art 5 – i) Govt. entitled to stop/prevent individual from leaving/visiting country for various reasons. E. g. political boycott, threat of war, pending criminal charges, etc . , ii) Internal Security Act – detention w/o trial : exempted from complying with Art 5 ? Art 6 – compulsory service for national purposes – work incidental to serving of imprisonment are not considered slavery/labor force ? Art 7 – the acquitted/convicted can be subjected to disciplinary action by a domestic tribunal for the same offence, OR being tried under difference statute Art 8 – Art 153 allows reservation of quotas for bumiputras – AG is given power to discriminate individual for public interest – Certain people – enjoy immunity. E. g. monarch, diplomat, special rapporteur for UN ? Art 9 – subject to banishment order made by Deputy Minister of Home Affairs under s 2(i) of Restricted Residence Enactment ? Art 10 – Freedom of speech: Defamation Act 1957, Sedition Act 1948, Official Secrecy Act, Printing Presses & Publications Act 1984 Freedom of Assembly : Permit is sin qua non. Has to satisfy the police the assembly is not prejudicial & excite disturbance of peace Art 11 – Propagation is subjected to clause 4 where the state & federal law may restrict, control the act of propagation of any religion among persons professing Islam Clause 5 – In exercising religious practices, The FC forbids any act which may lead to public disorder, affect public health or public morality. Case: (Halimatussaadiah v Public Service Commission, Malaysia, Anor  ? Art 12 – subject to Art 152 : national language and Art 153 : bumiputra quotas. Case: Merdeka University v Govt of M’sia  ? Art 13 – subject to acquisition by the govt. ut entitled to receive fair & reasonable compensation. Case: K’jaan Negeri Johor & Anor v Adong bin Kuwau & Ors  ? Amendment of the Federal Constitution ? All institutions created by the Federal Constitution and deriving their powers from it are subject to the provisions in Federal Constitution . ? The provisions that are written in the Federal Constitution can only be amended by certain methods provided for by the Federal Constitution itself. ? Article 159 provides for 4 methods by which the Federal Constitution can be amended: 1. Requiring Special Majorities 2. Requiring Consent of Conference of Ruler 3.
Requiring Consent of Sabah & Sarawak 4. Not requiring Special Majorities DIVISIONS/CLASSIFICATIONS OF LAW ? Legal rules can be divided up in many different ways. ? Not all legal rules are of the same type ? They show differences in purpose, in origin and form, in the consequences when the rules are breached and in matters of procedure, remedies and enforcement. EXAMPLES OF DIVISION OF LEGAL RULES ? 1. statute v common/case law ? 2. criminal law v civil law ? 3. national law v international law ? 4. public law v private law Criminal law v civil law ? Criminal law means the law relating to crime. Civil law means the law not relating to crime. ? The difference relies in the nature of the proceedings and the sanctions that may follow DIFFERENCES BETWEEN A CRIME AND A CIVIL WRONG CRIME ? 1. A crime is a public CIVIL WRONG ? 1. A civil wrong is an wrong. It constitutes breaches and violations of public rights and duties due to the community as a whole. infringement of a private civil right which belongs to an individual. ? 2. A crime is prosecuted by ? 2. A civil wrong is filed by the public prosecutor on behalf of the government; criminal charges cannot be filed by an individual.
An act is a crime if the sanction is enforced at the discretion of the state using a criminal procedure. the damaged or wronged individual. An act is a civil wrong if the sanction is enforced at the discretion of the party whose right has been violated, using a civil procedure. ? 3. If the outcome of the ? 3. Civil wrongs are usually procedure is punishment in the form of sentencing after a finding of guilt, then the act or wrong is a crime. Crimes are punishable by imprisonment, fines or capital punishment. resolved through awarding monetary damages to the wronged individual.
If the outcome is a judgment for damages, compensation, restitution, declaration of rights, order of specific performance, a prerogative order, etc. , then the act or wrong is a civil wrong. ? 4. The punishment for ? 4. There is no set limit on crimes has already been set down in rule and punishment is generally decided by the type of crime that was committed, the seriousness of the offence and, in some instances, the history of the offender. the amount one found guilty of a civil wrong can be made to pay. PUBLIC LAW V PRIVATE LAW ? Public law is concerned with the distribution nd exercise of power by the state and the legal relations between the state and the individual. ? For example, the rules governing the powers and duties of local authorities, the regulation of building standards, the issuing of passports, the compulsory purchase of land to build motorway all fall within the ambit of public law. ? Private law is concerned with the legal relationships between individuals such as the liability of employers towards their employees for injuries sustained at work, consumer’s rights against shopkeepers and manufacturers over faulty goods or owners’ rights to prevent others walking across their land.
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