Malaysian Legal System

CHAPTER 1: MALAYSIAN LEGAL SYSTEM

WRITTEN LAW

Federal Constitution (FC)

• 1 FC & 13 State Constitutions.
• Federal Law is the supreme law of the federation (law of the land, a kind of “higher law”).
• All law which are made by the 13 states & other bodies must be consistent with the FC.
• Any law inconsistent may be challenged in court & the law will be void.
• (Ah Thian v. Government of Malaysia)
• Art. 4(1) of the FC states that “The Constitution is the supreme law of the constitution shall, to the extent of inconsistency, be void”.

Subsidiary / Delegated Legislation

• Defined in Interpretation Act 1948 & 1967 (s. 3)
  as “Any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, enactment or other lawful authority & having legislative effect”.
• S L supplements legislation made by Parliament & State Legislature as legislation alone is insufficient & lacking in details in the governing of everyday matters & in practice.
• S L deals with the details which govern everyday matters which the legislature neither have the time nor the technical knowledge to enact laws.
• S L is made by executives & administrators who are neither elected nor directly accountable to the legislature or the public is vulnerable to abuse.
• Recognition of the need to protect the public from such abuse necessitates control over S L.
• 4 types of control:

• Consultation

• Before regulations are made, the authority (eg. Minister) will consult other organised interest groups or advisory bodies.

• Publicity

• S L is published in the Gazette.
• It will come in force on the date of publication.
• If it is not gazetted, it is invalid.
• Interpretation Act 1948 & 1967 (s. 20) states that “No person shall be made or shall become liable to any penalty in respect of any act done before the date on which the S L was published”.

• Parliamentary Control

• The making of S L is authorised by the Act which was enacted by the legislative body (Parliament).
• Because of this, the legislative body can always exercise control over the S L.

• Judicial Review

• The court has a control over a S L.
• The court can declare a S L as void, if the S L conflicts with the intention of the Parent Act or the Constitution.

Legislation

• Refers to law made by a person or body that have power to make law.
• The law enacted by the legislature & by bodies & persons authorized by the legislature.
• Laws are legislated by Parliament at federal level & the State Legislative Assembly at the state level.
• Enact law only within limits & in the manner prescribed by the Federal & State Constitutions.
• Laws enacted by Parliament are called Acts,
  but those enacted by the federal legislature between 01/04/1946 & 10/09/1959 are called Ordinances.
• Laws enacted by State Legislative Assemblies are referred to as Enactments except in Sarawak, they are known as Ordinances.
• May be invalidated on 1 of the following grounds:

• It relates to a matter concerning which the relevant legislature has no power to make law;
• It has not been enacted in accordance with the procedure prescribed in the constitution;
• It is inconsistent with any provision in the constitution; or
• In the case of state law it is inconsistent with the federal law.

Legislative Process

• Art. 44 of the FC vests the legislative authority of Malaysia in Parliament, comprising the YDPA & the 2 Houses of Parliament ie, Dewan Negara (Senate) & Dewan Rakyat (Representative).
• Legislation enacted by Parliament by introducing a Bill who is passed by both Dewan & assented by the YDPA.
• A Bill may originate in either Dewan although it most often originates in the Dewan Rakyat.
• Bills that concerning tax & expenditure must originate in the Dewan Rakyat.

1. Pre-Parliamentary Stage

• This covers in effect, the proposal, consultation & drafting stage.
• Proposal may come from various sources (such as the election manifesto of political party that becomes government, policy decisions of a Ministry or government department & others) and it has to be accepted in principle by the cabinet.
• A long series of discussions follow within & between the relevant government’s authorities involved.
• When the outlines have been worked out, the proposal is sent to the Parliamentary Draftsperson in the AG’s Chamber to be put into legal language & form the proposal to become a Bill.
• After approval by the cabinet, the Bill is ready to be introduced into Parliament.

1. Parliamentary Stage

• Order of the procedure is set out in Chap 5, Part IV of the FC & in standing both Dewan.
• A Bill is introduced into Parliament by the Minister responsible for the subject matter.
• When it has been passed, after debate & voting by the Dewan Rakyat, it is referred
  to Dewan Negara where it goes through
  the same process that consists of 4 stages (1st Reading, 2nd Reading, Committee Stage & 3rd Reading).

1. First Reading

• This is a mere formality & may take place even if the Bill has not been printed & circulated.
• All that happens is that the Ministers presets the Bill by having its short title read by the clerk of the Dewan.

1. Second Reading

• Occur when the Bill is printed & circulated.
• The most important stage.
• The minister outlines the principles of the Bill & there is a debate on the principles of the Bill.
• If the Bill receives the requisite number of votes (either a simple majority of members present & voting or a 2/3 majority of the total numbers of member of the Dewan in accordance with the requirements of FC), it will proceeds to the Committee Stage.

1. Committee Stage

• Bills are referred to Committee to enable the details of the Bill to be discussed in a less formal manner.
• The detailed discussions proceed in a definite order.
• Clauses in the order in which they appear the schedules (if any) & the preamble (if any) & amendment may be made but they are rare.
• At the end of discussion, the Minister moves a motion to report the Bill to Dewan.
• If the motion is accepted, the Dewan resumes sitting.

1. Third Reading

• The Bill is reviewed.
• A debate, if any, centres only on general principles.
• Substantive amendments are not allowed, except with the permission of the Speaker to correct errors or oversights.
• If passed in this reading, the Bill sent to Dewan Negara.

1. Dewan Negara

• Similar procedures made as in the previous Dewan.
• D N has no power to veto, reject or insists on its amendments to a Bill passed by D R
• Any disagreement between the 2 Dewan over any amendments are resolved by the appointment of joint committee of both Dewan.
• If D N does not pass the Bill or persists to disagree with the D R on its proposed amendments, the Bill will be presented for Royal Assent.

1. Royal Assent

• Under the FC, the YDPA shall within 30 days after it is presented to him; assent to the Bill by causing the Public Seal to be affixed thereto.
• When assent is not affected within the specified time (30 days), the Bill becomes law as if it has been assented to.
• Once the Bill is given Royal Assent, it becomes an Act.

1. Publication

• An act of Parliament cannot come into force until it is published.
• Publication is done in the Warta Kerajaan Malaysia (Federal Gazette).

UNWRITTEN LAW

English Law

• Civil Law Act 1956.
• (General Law) Under s. 3, it is provided that, save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall:

1. In WM or any part thereof, apply the common law of England & the rules of equity as administered in England on the 07/04/1956;
2. In Sabah, apply the common law of England & the rules of equity, together with statutes of general application, as administered or in force in England on the 01/12/1951; and
3. In Sarawak, apply the common law of England & the rules of equity, together with statutes of general application, as administered or in force in England on the 12/12/1949.

• 07/04/1956, 01/12/1951 & 12/12/1949 are important dates because only English common law & equity which is administered in England on that date is applicable in WM, S & S respectively. These dates are known as “cut-off” dates.

• (Mokhtar v. Arumugam, by virtue of s. 3(1), Malaysian Courts are not bound to follow the position of law after the cut off dates).
• (Commercial Law) Under s. 5, it introduced into Peninsular Malaysia (except Penang & Malacca) principles of the English Commercial Law as they stood on the 07/04/1956 in the absence of local legislation.
• In the 4 states (Penang, Malacca, S & S), there is a continuing reception of English Commercial Law in the absence of local legislation.
• (Land Matters) Under s. 6, it provides that nothing in this part shall be taken to introduce into Malaysia or any of the states comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immoveable property or any estate, right or interest therein.

Judicial Precedents

• Decisions made by a previous judge in a previous case that have similar situations.
• The doctrine of judicial precedent comprises of the following:

1. Declaratory Precedent – A judge applies an existing rule of law without extending it.
2. Original Precedent – If a judge has to decide on a case without any precedent, his decision which is made based on justice, equity & good conscience, will be known as original.

• Also known as “doctrine of stare decisis”.
• 2 categories of judicial precedent:

1. Binding – All decisions of higher courts bind the lower courts & the higher courts are bound by their own decision.
2. Persuasive – HC judges are not bound to follow the decision of another HC judge & decisions from outside Malaysia.

• The doctrine of precedent works when a case is brought before a court, the facts of the case have to be established by the court.

After that, the judge will apply the law to decide on who shall win the case.

At this stage, the doctrine is applicable.

• Courts that create binding precedent:

1. Decision of the Federal Court

• Binding on all lower courts.

1. Decision of the Court of Appeal

• Bound by the decision of the Federal Court.
• Binding on all lower courts including the High Court.
• Also bound by its own decision.

1. Decision of the High Court

• Binding on all Subordinate Courts.

1. Decision of the Subordinate Courts

• Sessions Court & Magistrate Courts are bound by the decision of the Superior Court.
• Not binding over any court.

THE JUDICIAL SYSTEM

• Superior Courts

1. Federal Court

4 types of jurisdictions:

• Original
• Appellate
• Reference
• Advisory

1. Court of Appeal
2. High Court (WM)
3. High Court (S & S)

• Subordinate Courts

1. High Court (WM)

(Syariah Court)

• Sessions Court
• Magistrates’ Courts
• Juvenile Court
• Penghulu’s Court

1. High Court (S & S)

(Syariah & Native Court)

• Sessions Court
• Magistrates’ Court
• Juvenile Court

Federal Court

1. Original Jurisdiction

• Art. 128(1) FC states that

The Federal Court shall, to be exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction:

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