Malaysian Legal System

Shereen Khan

Law
Law
A set of rules developed over a long period of time Regulates interactions that people have with each other Sets standard of conduct

o Between individuals and o Between individuals and the government General rule of conduct
Body of principles recognised & applied by the State Article 160(2) of the Federal Constitution
Written law
Common law Custom or usage

Law and the Government

Law in Malaysia
Malaysia - Peninsular Malaysia, Sabah & Sarawak

- not governed by the same set of laws - the Parliament & the Federal Court - Parliament does legislate for the whole country - Federal Court acts as a final court of appeal for the whole country
Government
13 states in Malaysia & Federal Territories Each State has a government and has rules
Federal Constitution

o supreme law of country o Confers legislative power to the Federal Parliament & the State Legislatures

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Article 73 Extent of Federal & State Laws
In exercising the legislative powers conferred on it by this Constitution:

Parliament may make laws for the whole country or any part of the Federation and laws having effect outside as well as within Federation; (b) The legislature of a State may make laws for the whole or any part of that State. Parliament may make laws for the whole of Malaysia.
(a)

Federal List State List Article 75

Ninth Schedule of FC any state law inconsistent with a Federal Law, Federal law shall prevail.

e.g. National Defence, Internal Security, Health, External Affairs, etc. E.g. Islamic Law, Land, Agriculture & Forestry, etc.

Classification of Law
Civil Law Common Law

Public Law

Private Law

International Law

Civil Law Common Law Public Law Private Law International Law

a complete code of written laws, primary source is legislation derived from case law, basis of English Law governs relationship between individuals & the state matters affect the rights & duties of individuals rules of conduct states bound to observe

Sources of Law Sources

Legal sources , Legal rules which made up the law in Malaysia

Main Sources
Written Law Unwritten Law Islamic Law

Written Law
Most important source of law Federal & State Constitution Legislation enacted by Parliament Subsidiary Legislation

Statue law

o Law made by Parliament & any subordinate bodies o E.g. Contract Act 1950, Companies Act 1965

Courts interpret the statute

Guided by
Interpretation Acts, Common Law rules of Statutory Interpretation, Precedent Literal/plain meaning approach, Golden Rule, Mischief Rule

Unwritten Law
English Law
English Common Law & Rules of Equity S.3(1) of Civil Law Act 1956

Application of the law of England; absence of statutes/ suited to local circumstances

Judicial Decisions
Decisions of High Court, Court of Appeal & Federal Court Doctrine of binding precedents

Customs
Customs of local inhabitants in Malaysia Customs relating to family law, i.e. marriage, divorce and inheritance

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Islamic Law
States have the power to administer Islamic Law Head of the Muslim religion is the Sultan

Courts which enforce Islamic law Syariah Courts

Islamic Law applies to Muslims only Does not apply to non-Muslims Business banking & finance,

Islamic principles are increasingly

relevant

Sources of Malaysian Law

Malaysian Law

Written Law

Unwritten Law

Islamic Law

Federal Constitution

State Constitutions

English Law

Judicial Precedents

Customs

Legislation
Subsidiary Legislation

Common Law

Equity

Legal System in Malaysia

Federal Court

Court of Appeal

High Court in Malaya

High Court In Sabah & Sawak

Sessions Court

Sessions Court

Magistrates Court

Magistrates Court

Continue.. Superior Courts

Two High Courts Court of Appeal Federal Court

Subordinate Courts
Sessions Courts Magistrates Courts

High Court
Consists of two Chief Judges One in Peninsular Malaysia One in Sabah & Sarawak At least 56 Judges & Judicial Commissioners Jurisdiction of High Court Original, appellate & supervisory Any civil matter which cannot be determined in the sub-courts Jurisdiction to try all civil & criminal appeals from sub-Courts

Court of Appeal
Jurisdiction to hear and determine any appeal against any

High Court decision on criminal matters

Jurisdiction to hear and determine civil appeals generally for

cases where the amount or value of the subject matter is at least RM250,000.00

Federal Court
Highest court in Malaysia Has jurisdiction in matters ; Civil & criminal appeals from Court of Appeal

Hear any disputes between Federal & State

Governments To determine constitutional questions Give opinion on any question referred to by the King

Sessions Courts
Highest of the subordinate or inferior courts

all offences other than punishable by death May pass any sentence other than death sentence Civil Jurisdictions
Criminal jurisdiction
All actions does not exceed RM100,000. Exclude land matters, specific performance,

recession of contracts, injunction, probate, administration of estates, divorce, bankruptcy, trusts, accounts

Magistrates Court
Deals with minor civil & criminal cases All offences

the maximum term does not exceed 10 yrs imprisonment or fine alone