Malaysian Legal System

MALAYSIAN LEGAL SYSTEM

TOPICS

CLASSIFICATION OF LAW

1. Public law (Between the Individuals and the State)
2. Private Law (Between the Law and Individuals)
3. International Law (Law between States)

SOURCES OF LAW

1. Historical Sources
2. Place
3. Legal Sources: a) Written Law b) Unwritten Law

Written Law Unwritten Law Syariah Law

- Federal Constitution - Principles of English Law
- State Constitution - Judicial Precedents/ Decisions
- Legislation - Native /Customary Law
- Subsidiary Legislation

HIERARCHY OF COURTS

Superior Courts Subordinate Courts
-Federal Court -Sessions Court
-Court of Appeal - Magistrates Courts -Penghulu’s Court

|WRITTEN LAW |

FEDERAL CONSTITUTION

▪ In Malaysia, there are 13 states and 3 Federal Territories. As such, there is one Federal Constitution and 13 State Constitution. ▪ Federal law is the supreme law of the federation .It is the law of the land, a kind of “higher law” which is used as a yardstick with which to measure the validity of all other laws. ▪ All laws which are made by the 13 states and other bodies must be consistent with the Federal Constitution. ▪ Any law inconsistent with the Federal Constitution may be challenged in court. ▪ In the case of Ah Thian vs Government of Malaysia (1976 2 MLJ p112), Tun Suffian, the Lord President as he then was points out that “the doctrine of supremacy of parliament 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 and they cannot make any law that they please”. ▪ The legislature is not the only branch of the government which is subject to the Constitutions .The executive and judiciary, are too. In short all institution created by the Federal Constitution and deriving powers from it is subject to its provisions. ▪ Article 4(1) of the Federal Constitution states that “The Constitution is the supreme law of the Federation and any law passed after the Merdeka Day which is inconsistent with the constitution shall, to the extent of inconsistency, be void. ▪ Supremacy of the Constitution is maintained by giving the courts the power and the right to review legislative and executive acts. When their acts violate the Constitution the court may declare it ultra vires (unconstitutional) and void. ▪ Legislation may be invalidated on one of the following grounds : 1) it relates to a matter concerning which the relevant legislature has no power to make law. 2) it has not been enacted in accordance with the procedure prescribed in the constitution. 3) it is inconsistent with any provision in the constitution. 4) in the case of state law it is inconsistent with the federal law. ▪ The rights that are written in the Federal Constitution can only be amended by a 2/3rd majority of legislation. However there are a number of provisions which requires the consent of Majlis Raja-Raja in addition when it involves “sensitive issues” i.e. institution of Rulers and special rights of Malays including natives of Sabah and Sarawak.

Contents of the Constitution (Refer to the Federal Constitution)

LEGISLATION

• Legislation refers to laws made by a person or body that have power to make law • Thus, legislation is the law enacted by the legislature, and by bodies and persons authorized by the legislature. • In Malaysia, the power to enact law is vested in Parliament at the federal level and the State Legislative Assembly at the state level. • They can enact law only within the limits and in the manner prescribed by the Federal and State Constitutions. • Laws enacted by parliament are called Acts, but those enacted by the federal legislature between 1 April 1946 and 10 September 1959 are called Ordinances. • Laws enacted by the State Legislative Assemblies are referred to as Enactments except in Sarawak where they are known as Ordinances.

SUBSIDARY / DELEGATED LEGISLATION

▪ Subsidiary Legislation is defined in the Interpretation Act as any “proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect. ▪ Subsidiary legislation is also known as subordinate or delegated legislation. ▪ Subsidiary legislation supplements legislation made by Parliament and State Legislature as legislation alone is insufficient and lacking in details in the governing of every day matters and in practice. Thus, subsidiary legislation deals with the details which govern everyday matters which the legislature has delegated them to do so. ▪ Subsidiary Legislation deals with the details about which legislature neither have the time nor the technical knowledge to enact laws. ▪ Legislature merely lays down the basic and main laws and leaving the details to persons and bodies to whom they delegate their legislative powers. For example Ministers and local authorities and examples of subsidiary legislation are rules, regulations and by-laws. ▪ However, subsidiary legislation made in contravention of either a parent Act or the Constitution is void. ▪ Although subsidiary legislation is an indispensable tool in the modern government but it has raised widespread concern. ▪ This is because subsidiary legislation is essentially made by the executives and 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 subsidiary legislation. ▪ The four types of control are Consultation, publicity, Parliamentary Control and Judicial Review (Refer manual).

LEGISLATIVE PROCESS

• Article 44 of the Federal Constitution (FC) vests the legislative authority of Malaysia in Parliament , comprising the YDPA and the two Houses of Parliament i.e. the Dewan Negara ( Senate) and the Dewan Rakyat ( House of Representatives ) • Briefly, legislation is enacted by Parliament by introducing a Bill who is passed by both Dewan and assented by the YDPA. • A Bill may originate in either Dewan, although it most often originates in the Dewan Rakyat. Bills concerning tax or expenditure must originate in the Dewan Rakyat. • There are two main stages in the process: Pre - Parliamentary and Parliamentary.

Pre-Parliamentary Stage

• This covers in effect , the proposal , consultation and drafting stage • Proposal for legislation may come from various sources, for example the election manifesto of political party that becomes government, policy decisions of a Ministry or government department, recommendations of a Royal Commission or from pressure groups (NGO). • Wherever the proposal comes from, it has to be accepted in principle by the Cabinet. • A long series of discussions follow within and between the relevant governments authorities involved. Experts and interested outside bodies may be consulted. If the proposal is particularly important, there may even be public discussion in media. • When the outlines have been worked out, the proposal is sent to the Parliamentary Draftsperson in the Attorney General’s Chambers to be put into legal language and form the proposal to become a “Bill”. • After approval by the Cabinet , the Bill is ready to be introduced into Parliament

Parliamentary Stage

• Orders of The procedure is set out in Chapter 5, part IV of the Federal Constitution and 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 and voting, by the Dewan Rakyat, it is referred to Dewan Negara where it goes through the same process.

• In each Dewan ,the Bill goes through the same process or the four stages : • First Reading, Second Reading, Committee Stage and Third Reading.

First Reading

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

• This can occur when the Bill is printed and circulated .It is the most important stage. • The Minister outlines the principles of the bill and 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 and voting or a two thirds majority of the total number of members of the Dewan in accordance with the requirements of the FC) it proceeds to the Committee stage.

Committee Stage

• Bills are referred to a 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) and 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.

Third Reading

• The Bill is reviewed .a debate, if any, centers 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 is sent to Dewan Negara.

Dewan Negara

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

Royal Assent

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

THE APPLICATION OF ENGLISH LAW IN MALAYSIA

▪ English law forms part of the laws in Malaysia. English law can be found in the English common Law and the rules of equity. However, not all English common law and rules of equity forms part of the Malaysian law.

▪ Reference shall be made to the CIVIL LAW ACT 1956

▪ Under Section 3 (1) of Civil Law Act 1956,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:

a) in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7th day of April 1956; b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 1st day of December 1951; c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th of December 1949.

o 7th April 1956, 1st December 1951 and 12th December 1949 are important dates because only English common law and equity which is administered in England on that date is applicable in West Malaysia, Sabah and Sarawak respectively. These dates are known as “cut-off” dates.

▪ Section 3(1) of the Civil Law Act connotes the strict application of English law in Malaysia before the cut off date. o Hence, the issue arises as to the application of English law in Malaysia after the cut off date.

▪ In the case of Mokhtar vs Arumugam ,

o Smith J in a dictum said that the court could not award damages in the nature of interest for delay in the return of specific goods on the basis that such relief had been provided by Section 29 of the Civil Procedure Act ,1833 (English ). He added that by virtue of Seection 3(1) of the Civil Law Ordinance, 1956 such relief, being a creature of English statute, is not available here. ▪ Thus, by virtue of section 3 (1), Malaysian courts are not bound to follow the position of the law in England after the cut date.

▪ In the case of Ong Guan Hua v Chong,

o Similar rule as the case above was applied where the court held that the English Gaming Acts of 1710 and 1835 had no applicatio in West Malaysia.

▪ In the case of Jamil bin Harun v Yang Kamsiah & anor

o The Privy Council that it is for the courts in Malaysia to decide, subject always to the statute of law of the Federation, whether to follow the English law. Modern English authorities may be persuasive, but are not binding. In determining whether to accept their guidance, the courts will have regard to the circumstances of the states of Malaysia and will be careful to apply them only to the extent that the written law permits, and no further than, in their view, it is just to do so.

▪ In the case of Karpal Singh & Anor v Public Prosecutor (1991) 2 MLJ 544 It was held in this case that the English Common Law cannot be applied in criminal procedure, which in Malaysia is governed by the Criminal Procedure Code.

▪ In Sabah & Sarawak, the courts shall only apply the common law of England and the rules of equity, together with 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.

▪ Thus, it should be noted that the application of English law may be persuasive and not binding. In determining whether to accept the application of English law, the courts will have regard to the circumstances of the states of Malaysia.

▪ The courts in Malaysia Will be careful to apply the English law only to the extend : ▪ It is only applied in the absence of local statutes covering the same matter. ▪ It can only be applied if it is suited to local circumstances.

▪ Under Section 5 of the Civil Law Act 1951 it introduces into Peninsular Malaysia (except states of Penang and Malacca) principles of the English Commercial Law as they stood on the 7th day of April, 1956 in the absence of local legislation.

▪ The subsection reads:

In all questions or issues which arise or which have to be decided in the States of West Malaysia other than Malacca and Penang with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and with respect to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.

▪ On the other hand, section 5(2) of the CLA 1956, which applies to the States of Penang, Malacca, Sabah and Sarawak, provides that English Commercial Law shall apply to the matter which has to be decided in the named States as it would in England at the corresponding period. This means that in these four States, there is a continuing reception of English Commercial Law in the absence of local legislation.

▪ However, since there are so many local statutes already passed which deal with commercial subjects, there is no total reliance on English Commercial Law. In Kon Thean Soong v Tan Eng Nam (1982) it was held that English law of partnership was not applicable in Malaysia since there is a local statute applicable, that is, the Contracts (Malay States) Ordinance.

▪ However, since there are so many local statutes (for example, Companies Act 1965, Partnership Act 1961, and Bills of Exchange Act 1949) already passed which deal with commercial subjects; there is no total reliance on English Commercial Law.

▪ Under Section 6 of the Civil Law Act 1951 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.

▪ The question is as to whether English Land Law, in particular English rules of equity relating to land, applies in Malaysia.

▪ In the case of United Malayan Banking Bhd & Anor v Pemungut Hasil Tanah , Kota Tinggi

The Privy Council held that since the National Land Code is a complete and comprehensive code of law governing the land tenure and incidents of it as well as other important matters affecting land, there is no room for importation of any rules of English law in that field except in so far as the Code may itself expressly provide.

JUDICIAL PRECEDENTS

▪ Judicial precedents are decisions made by a previous judge in previous cases that have similar situations. ▪ The doctrine of judicial precedent comprises of the following:

(a)Declaratory Precedent – a judge applies an existing rule of law without extending it (b)Original Precedent – if a judge has to decide on a case without any precedent, his decision which is made based on justice, equity and good conscience, will be known as original

▪ The practice of following precedent is also known as “doctrine of stare decisis”. Literally , to stand by what has been decided) ▪ In Malaysia, judicial precedent can be obtained from judicial decisions of the Federal Court , Judicial decisions of the Court of Appeal and judicial decisions of the High Court

▪ There are two categories of judicial precedents. They are: a) Binding - all decisions of higher courts bind the lower courts - the higher courts are bound by their own decision (b) Persuasive - High Court judges are not bound to follow the decision of another High Court Judge - Decisions from outside of Malaysia (Please take note of the decisions of the English Courts)

▪ How does the doctrine of precedent work? ▪ When a case is brought before a court, the facts of the case have to be established by the court .After the facts are established, the Judge will apply the law to decide on who shall win the case (the law that the Court shall apply will be based on the decision of previous Judge). It is at this stage that the doctrine of judicial precedent/stare decisis is applicable.

▪ The next question is to determine which Court’s decision will create a binding precedent.

Decision of the Federal Court ▪ The decision of the Federal Court is binding on all lower courts. ▪ In the case of PP v Datuk Tan Cheng Swee (1980) 2 MLJ 276, Chang Min Tat FJ stated that It is however necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High and other inferior Courts in a common law system such as ours, to follow similarly.”

Court of Appeal ▪ COA is bound by the decision of the Federal Court .The COA’s decision is binding on all lower courts, including the High Court and COA is also bound by its own decision.

High Court HC decision is binding on all subordinate courts

Subordinate Courts ▪ The Sessions Court and Magistrate Courts are bound by the decision of the Superior Court. The Sessions Court and Magistrate Courts decisions are not binding over any court.