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BUSINESS LAW (LAW 416)

TOPIC 1:
MALAYSIAN LEGAL
SYSTEM
PART 1. Sources of law in Malaysia
FOCUS MORE ON: Legislation and Subsidiary
Legislation

PART 2. The administration of


justice/ Courts System in Malaysia

PART 1 SOURCES OF
LAW IN MALAYSIA

What is legal system?

There are various definitions of the term


"legal system"
Definition: a system for interpreting and
enforcing the laws.
Definition: the set of laws of a particular
country and the way that they are used
The Malaysian legal system can be
classified into two categories which is
the Written and Unwritten law.

Malaysian Written Law


(Sources of Malaysian Law)
On the other hand, Written law refers to the
laws contained in the Federal and State
Constitutions and in a code or a statute. The
written laws are much influenced by English laws
as the Malaysian legal system retains many
characteristics of the English legal system..
The Written law includes the :
Federal Constitutions
State Constitutions
Legislation and
Subsidiary Legislation.

Written law:

1. FEDERAL CONSTITUTIONS

Federal Constitution is the supreme law


of the country.
It protects the basic or fundamental
rights of the individual.
These rights can only be changed by a
two-thirds majority of the total number
of members of the legislature.
Any general law which is inconsistent
with the Federal Constitution is void.

Written Law:

2. STATE CONSTITUTIONS

State Constitution regulates the


government of that State.
Each state in Malaysia possesses its own
constitution.
The State Constitution contains
provisions which are enumerated in the
Eighth Schedule to the Federal
Constitution.

Written Law:

3. LEGISLATION

Refers to law enacted by a body


constituted for this purpose.
Laws are enacted by Parliament at the
federal level and by the various State
Legislative Assemblies at State level.

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An Act- refers to law enacted by Parliament at the
Federal Level of Malaysia. However laws enacted by
Parliament between 1 April 1946 and 10 September 1959 are
known as Ordinances.
An Enactment- refers to law enacted by State Legislative
Assemblies. However, laws enacted by the State Legislative
Assembly of Sarawak are known as Ordinances.
An Ordinance- refers to laws promulgated
(diisytiharkan)by the Yang di-Pertuan Agong during
an emergency. (Darurat) A proclamation of emergency is
made by the Yang di-Pertuan Agong when emergency exists
whereby security, economic life, public order in the
Federation or any part thereof is threatened and there is an
imminent danger.

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS
6 Ways on how a bill becomes a law (An
Act)
FIRST READING

SECOND READING
A COMMITTEE OF HOUSE
THIRD READING
OTHER HOUSE(SENATE)
ROYAL ASSENT

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

FIRST STAGE First Reading

FIRST STAGE
First Reading
(House of Representative/Dewan
Rakyat)

Bill is introduced in one of the


two houses either House of
Representatives or the Senat.
Only its title is actually read.
After the bill is passed at this

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

SECOND STAGE- Second Reading

SECOND STAGE
Second Reading
(House of Representative/Dewan
Rakyat)
Members debate the bill. If accepted,
it is passed on for consideration by a
committee of the house. A committee
in 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

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

A Committee of House

THIRD STAGE
A Committee of House
(Peringkat Jawatankuasa Dewan)
Considers the Bill in detail and may amend
any part of it. 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.
If the report is approved, the Bill goes on to a
third reading in the house.

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

THIRD STAGE- Third Reading

FOURTH STAGE
Third Reading
Debate takes place and
amendments may be put to a
note. The house then either
passes or defeats the bill

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

FOURTH STAGE- Other House

FIFTH STAGE
Other House
(Senate/Dewan Negara)
When a Bill has passes 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.

THE LEGISLATIVE PROCESS/


LAW MAKING PROCESS

FIFTH STAGE/FINAL STAGE- Royal Assent

SIXTH STAGE/FINAL
STAGE
Royal Assent
When the Bill has passed both
houses in accordance with
Article 68, it is sent to the Yang
di-Pertuan Agong for the Royal
Assent. The bill becomes a law
upon publication.

Written Law:

4. SUBSIDIARY LEGISLATION

Subsidiary legislation refers to rules and


regulations enacted by an authority which
has been conferred power by the statute.
It deals with the detail that is being left
behind by the legislature.
This is due to the fact that legislation is
insufficient to provide for everyday matters.
Example of subsidiary legislation is parking
laws enacted by local councils.

CONTROL OF SUBSIDARY
LEGISLATION

There are four types of control:


1. Consultation
2. Publicity
3. Parliamentary Control
4. Judicial Review

CONTROL OF SUBSIDARY
LEGISLATION

1. Consultation- Before regulations are


made, the authority (for example
Minister) will consult other organized
interest groups or advisory bodies.
2. Publicity- It will come in force on the
date of publication. If subsidiary
legislation is not gazetted, it is invalid.

CONTROL OF SUBSIDARY
LEGISLATION

3. Parliamentary Control- The legislative


body exercise control over the subsidiary
legislation.
4. Judicial Review- The Court has a
control over a subsidiary legislation. The
Court can declare a subsidiary legislation
as void if the subsidiary legislation
conflicts with the Federal Constitution.

Malaysian Unwritten Law


(Sources of Malaysian Law)
The Unwritten law does not mean that the law
is literally unwritten. It refers to the laws which
are not enacted by the Legislature and which are
not found in the Federal and State constitutions.
This category of law comes from cases decided by
the Courts and the local customs, which is
otherwise known as common law.
The unwritten law mainly comprised of the :
English law,
Judicial decisions and
Custom law.
Islamic/Shariah law

Unwritten Law
1. ENGLISH LAW

Due to colonialism, English law forms


part of the laws of Malaysia.
English law can be found in the English
common law and rules of equity.
According to Section 3 (1) Civil Law Act
1956, the courts in peninsular Malaysia
shall apply the common law of England
and rules of equity as administered in
England on 7TH day of April 1956.

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In Sabah and Sarawak, the courts shall apply


the common law of England and the rules of
equity, together with the statutes of general
application as administered or in force in
England on the 1ST day of December 1951
and the 12TH day of December 1949
respectively.
According to Section 3(2) Civil Law Act 1956,
in the event of conflict between the common
law and the rules of equity with reference to
the same matter, the rules of equity prevail.

Unwritten Law
2. JUDICIAL DECISION
Kehakiman)

(Dahuluan

Decision made by the judge is part of the


Malaysian law.
When judge made decision, they follow certain
accepted principles commonly known as
precedents.
Precedents are decision made by judges
previously in similar situations.
Judicial precedents are based on the hierarchy
of courts.
It is based on the principles that the decision
of the higher courts binds the lower courts and
some courts are bound by their own decision.

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It is a process whereby judges made


decision.
The decisions are later binding for the
future.
A decision of superior courts for example
the Supreme Court (Federal Court) binds
the lower courts for example the High
Court, Sessions Court and Magistrates
Court.
This process created law in Malaysia.

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Judges can make law in two ways:


1) By applying an established rule or
principle to a new situations or a set of
facts.
2) Interpreting statutes enacted by the
legislature.

Unwritten Law
3. CUSTOM

Customs relates to customs of different


races.
Eg: Adat applies to Malay. Hindu and
Chinese customary law applies to Hindu
and Chinese respectively.
Example of customary law in Malaysia
are adat Pepatih and adat Temenggong.

Unwritten Law
4. ISLAMIC/SHARIAH LAW

Applies to Muslims only and does not apply


to non Muslim.
Federal Constitution provides that states
have the power to administer Islamic law.
Head of the Muslim religion in a state is the
Sultan. However in Penang, Malacca, Sabah
and Sarawak and Federal Territories the
head of the Muslim religion is the Yang diPertuan Agong.
The courts which enforce Islamic law in the
country are the Syariah Courts.

SOURCES OF MALAYSIAN
LAW
WRITTEN LAW
1.Federal
Constitution
2.State
Constitution
3.Legislation
4.Subsidiary
Legislation

UNWRITTEN LAW
1.English Law
2.Judicial Decision
3.Customs
4.Islamic Law

PART 2
THE ADMINISTRATION
OF JUSTICE
(Courts systems in
Malaysia)

Administration of Justice/
Courts Systems in Malaysia

In Malaysia, when there is dispute


between parties, it can be settled by
bringing the case to the courts.
Courts are divided into two
categories:
1. Superior Courts
2. Subordinate Courts

Superior Courts

HIERARCHY OF THE COURTS


FEDERAL COURT
COURT OF APPEAL
HIGH COURT
(West Malaysia)

HIGH COURT
(Sabah&Sarawak)
SESSIONS COURTS

MAGISTRATES COURTS
PENGHULUS COURTS
(In West Malaysia Only)

Subordina
te Court

SUPERIOR COURT
Federal Court

Federal Court is the highest court in


Malaysia.
The Federal Court is established under Article
121(2) of the Federal Constitution.
Federal Court consist of:
1. Chief Justice (President of the court)
2. President of the Court of Appeal
3. Two Chief Judge of High Court
4. Four other Federal Court Judges

Jurisdiction of Federal Court

A)Original jurisdiction
B) Appellate jurisdiction
C) Reference jurisdiction
D) Advisory jurisdiction

Jurisdiction of Federal Court


1.

2.

Original Jurisdiction Provided under


Article 128(1) Federal Constitution.
Determine the disputes on any other
question between states or between
the Federation and any states
Appellate Jurisdiction- Provided
under Article 128(3) Federal
Constitution. Determine appeals from
the Court of Appeal.

Jurisdiction of Federal Court


3. Reference Jurisdiction- Provided
under Article 128(2) Federal Constitution.
As reference regarding Constitutional
matter.
4. Advisory Jurisdiction Provided
under Article 130 Federal Constitution. The
Yang Di Pertuan Agong may refer to the
Federal Court for its opinion .

SUPERIOR COURT
Court of Appeal

The Court of Appeal is established by


Article 121(1B) of the Federal
Constitution.
Jurisdiction of Court of Appeal- The
Court can hear both Civil and Criminal
appeal cases

Jurisdiction of Court of
Appeal
CIVIL APPEAL CASES

CRIMINAL 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

Has jurisdiction to
hear and
determine any
appeal against the
decision of the
High Court

SUPERIOR COURT
High Courts
Established under Article 121(1) of the
Federal Constitution.
There are 2 high courts in Malaysia:
1. High Court for West Malaysia
2. High Court for Sabah & Sarawak
High Court is presided by a Chief Judge.
The jurisdiction of the High Court is
original, appellate and supervisory.

SUBORDINATE COURTS
Session Courts

Sessions Court has the authority to try


civil and criminal cases.
CIVIL CASES

CRIMINAL CASES

All suit where


the amount in
dispute or the
subject matter
does not
exceed RM 250
000
And more if
parties

All offences
other than
offences
punishable with
death

SUBORDINATE COURTS
Magistrates Courts

Deals with minor civil and criminal cases.


There are two classes of Magistrate Court
A) First class Magistrate Court
B) Second class Magistrate Court

Magistrate Court
FIRST CLASS

SECOND CLASS

CRIMINAL CASES
To try all offences
punishable with up to 10
years imprisonment or
with fine only and
offences related to
punishable for robbery
and house breaking.

CRIMINAL CASES
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.

CIVIL CASES
No jurisdiction for civil
To try all litigations where cases
the matter in dispute or
subject matter does not
exceed
RM 25 000

SUBORDINATE COURTS
Penghulus Courts

The court ranks at the lowest level.


It is presided by a Penghulu appointed by the
State Government.
It exists only in the states of Peninsular
Malaysia.
Currently remains only in the statute book
because it is hardly ever used.
Jurisdiction: Penghulu is empowered to try
civil disputes where the subject matter does
not exceed RM 50 in value and in criminal
cases to imposed a fine not exceeding RM 25.

SAMPLE FINAL QUESTION

The sources of Malaysian Law refer to


the legal rules that make up the law in
Malaysia. They consist of written law as
well as unwritten law. Briefly discuss the
sources of law in Malaysian today.
(25Marks)

SAMPLE FINAL QUESTION

Explain the written sources of law under


the Malaysian Legal System (25 Marks)

SAMPLE FINAL QUESTION

Parliament of Malaysia is vested with the


powers to legislate law. Explain the
procedure of the law making process
before any law is passed by Parliament.
(25Marks)

SAMPLE FINAL QUESTION

Describe the hierarchy of courts in


Malaysia and explain the jurisdiction of
the subordinate courts. (25Marks)

SAMPLE FINAL QUESTION

English Common Law and the Rules of


Equity form part of the laws of Malaysia.
Discuss the extent of the application of
English Law as applied in Malaysia. (25
Marks)

SAMPLE FINAL QUESTION

Sources of law can be divided into 2:


Written and Unwritten law. Discuss the
sources of unwritten law. (25Marks)

SAMPLE FINAL QUESTION

Describe the hierarchy of courts and


explain the jurisdiction of the Superior
Courts in Malaysia.

SAMPLE FINAL QUESTION

Parliament of Malaysia is vested with the


power to make law. Explain the
procedures of law making before a bill is
passed by Parliament.

SAMPLE FINAL QUESTION

Judicial precedent form part of the


sources of Malaysian law. Explain how
the system of judicial precedent works in
Malaysia. (15Marks)
Describe the hierarchy of courts in
Malaysia and explain the jurisdiction of
Federal Court. (10Marks)

SAMPLE FINAL QUESTION

Discuss what is meant by delegated


legislation as one of the sources of law
and the types of control that exist to
prevent abuse of power by the
delegated bodies.

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