INTRODUCTION TO MALAYSIAN LEGAL SYSTEM Prepared by Ms

INTRODUCTION TO MALAYSIAN LEGAL SYSTEM Prepared by: Ms. Norazimah Mazlan

SOURCES OF MALAYSIAN LAW Written Law Unwritten Law Federal & State Constitution English Law (Common Law & Rules of Equity) Judicial decisions Legislation (enacted by Parliament & the State Legislative Assemblies) Subsidiary Legislation (made by persons or bodies under powers conferred on them by federal & state legislation) Customs Syariah Law

i. Federal Constitution Ø The supreme law of the country. Ø It lays down the powers of the Federal Government and contains the basic or fundamental rights of individual. Ø Any law which is inconsistent with the Federal Constitution shall be void. Article 4(1) of the Federal Constitution: Ø “This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

Ø It provides for the establishment and the organization of three main branches of the government: qthe legislative branch called the Parliament, qthe executive branch led by the Prime Minister, qthe judicial branch headed by the Federal Court.

ii. State Constitution • Each of the Malaysian states also have its own constitution regulating the government of that state. • It contains provision which are enumerated in the eight schedule to the FC: Ø The Ruler Ø The Legislature of the state Ø The Legislative Assembly Ø The executive council

iii. Legislation • Also referred to as the primary legislation. • Article 73 of the Federal Constitution: In exercising the legislative powers conferred on it by this Constitution: (a) Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation; (b) The Legislature of a State may make laws for the whole or any part of that State.

• “Act of Parliament” means a law made by Parliament. • Federal Legislation Ø laws made by the legislature in Parliament Ø are called as Acts (except those laws enacted prior to 1957 are called Ordinances). Ø Parliament can only enact laws on matters stated in List I of the Ninth Schedule of FC. • State Legislation Ø laws enacted by the state legislature in the State Assemblies. Ø referred to as Enactments, except in Sarawak which are called Ordinances. Ø the State can elect laws on matters stated in List II of the Ninth Schedule of FC.

• Matters stated in List III are within the concurrent competence of both Federal and States. • Laws enacted by Parliament or State Assemblies must be subject to the Federal Constitution and State Constitutions.

iv. Subsidiary Legislation • ‘Subsidiary legislation’ to mean any proclamation, rule, regulation, order, notification, by‐law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect. • These are legislation made by Ministers, statutory bodies and local authorities under the power delegated by the legislature and has legislative effect. • Subsidiary legislation deals with details which the legislative has neither the time nor the technical knowledge to enact such laws or rules.

• Subsidiary legislation must not be made in contravention of either : Ø the parent Act / Ordinance or Ø the Federal or State Constitution. • In the event of any of the provisions in the subsidiary legislation conflict with the parent Act or Ordinance: Ø the Act or Ordinance shall prevail and Ø the provision of the subsidiary legislation will be void.

v. English Law • English Law can be found in the English Common Law & Rules of Equity Common law • Common law are actually rules or judicial pronouncement or decisions developed and laid down by the English courts. The rules laid down are based on customs and practices common throughout England.

Rules of Equity • Equity is a branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing. • It was after the birth of the common law system to resolve disputes where damages were an unsuitable remedy and to introduce fairness into the legal system. • Equity is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law.

• The rules of equity grew up for the litigants who were dissatisfied with the justice administered by the common law courts. • The Court of Chancery is the principal court of equity. • The earliest jurisdiction of this court was to hear petitions by litigants to: – A person whom a remedy had been denied – A person against whom an order had been unjustly made at Common Law – To recognise and enforce a diverse set of principles ( now known as rules of equity)

• English law forms part of the laws of Malaysia by virtue of Section 3 and 5 of the Civil law Act 1956 (CLA). • Section 3(1) of CLA provides that: Ø In Peninsula Malaysia, the courts shall apply the common law of England the rules of equity as administered in England on 7 th of April 1956. Ø In Sabah and Sarawak, the courts shall apply the common law of England the rules of equity, together with the statutes of general application, as administered or in force in England on 1 December 1951 and the 12 December 1949 respectively.

COMPARISON Peninsular Malaysia Sabah & Sarawak Common law of England Common law of England Rules of equity statutes of general application Cut-off date: Cut-off date: 7 April 1956 1 December 1951 (Sabah) 12 December 1949 (Sarawak)

• Section 5(1) Civil Law Act 1956 introduces into Peninsula Malaysia principles of English commercial law as it stood on April 1956 in the absence of local legislation (except the States of Penang and Malacca) • In Penang, Malacca, Sabah and Sarawak, there is still a continuing reception of English commercial law in the absence of local legislation.

Proviso to Section 3(1) Civil Law Act • Application of English Law of England throughout Malaysia is subject to 2 limitations: ØIt is applied only in the absence of local statutes on the particular subject ØOnly part of the English Law which is suited to local circumstances will be applied.

vi. Judicial decisions • These are the decisions (judicial decisions) made by the Superior Court (Federal Court, Court of Appeal) and the Subordinate Court (Session Court and the Magistrate Courts). • These decisions are part of Malaysian law and are made and followed by the Malaysian courts under the doctrine of ‘binding judicial precedent’. • The ‘doctrine of binding precedent’ is applicable where the decisions or case law binds the immediate parties to the decisions or proceedings.

• Judge does not decide case arbitrarily and follow principle/decision made by judges previously in similar situations. • The binding principle based on the hierarchy of courts. • The general rule is the decision of higher courts bind lower courts and some courts are bound by their own decisions.

HEIRARCHY OF MALAYSIAN COURTS

• ‘ratio decidendi’ is the reason for the decision or (legal reasoning). It may be used by Judges in future cases with similar facts. • In all judicial precedents the courts have to state the legal reasoning for the decision. • This is actually a statement of principles of law to the legal problem presented before the court and would be binding upon the court.

• Obiter dictum. A judge may express an opinion on question of not directly relevant to the case. It is not binding on courts but it may have a persuasive authority.

vii. Customary Law • In Malaysia the customary laws are: ‐ ØMalay customary law applicable to Malays; ØChinese customary law applicable to Chinese; ØHindu customary law applicable to followers of Hinduism; ØOrang Asli customary law applicable to Orang Asli in Peninsula Malaysia; and ØNative customary law applicable to the non‐ Muslim indigenous communities in Sabah & Sarawak.

• Generally customs relating to family law, i. e. marriage, divorce and inheritance, are given legal force by the courts in Malaysia. • Before the introduction of the Law Reform (Marriage and Divorce) Act 1976, Hindu and Chinese customary law applied to the Hindus and Chinese respectively. • After the enforcement of the 1976 Act in 1982 which is applicable only to non‐Muslim, polygamous marriage were abolished. • In Sabah and Sarawak, native customary laws apply in land dealings over native customary lands and family matters where natives subject themselves to native customary laws.

viii. Syariah Law • Article 3 of the Federal Constitution states: “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation” • Muslims are compulsorily subjected to the Syariah and to the jurisdiction of the Syariah courts in personal law and a few other enumerated matters. • The Syariah is not applied to non‐Muslims and no non‐Muslim is subject to the jurisdiction of the Syariah courts.

• The Federal Constitution provides that the States have the power to administer Islamic Law. • The head of the Muslim religion in a state is the Sultan (except for Penang, Malacca, Sabah and Sarawak and the Federal Territories). In Penang, Malacca, Sabah and Sarawak the head is the Yang di Pertuan Negeri and Federal Territories is the Yang Di Pertuan Agong.

REFERENCES • Lee Mei Pheng, (2005). General Principles of Malaysian Law. 5 th Ed. MY: Penerbit Fajar Bakti.