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1. . .
ORGANS OF THE GOVERNMENT 1.1 Governmental functions & organs 1.2 Key features of the Malaysian Legal System
2.
SOURCES OF LAW IN MALAYSIA
3.
1.1 1.2 1.3 1.4 1.5 1.6 1.7
Federal and State constitution Federal and State legislation Subsidiary legislation English Common law and equity Customs Judicial precedent Islamic law
ADMINISTRATION OF JUSTICE 3.1 3.2
Hierarchy of the courts Jurisdiction of the Courts
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Organs of the Malaysian Government
Constitution of Malaysia (Federal Constitution)
Yang Di-Pertuan Agong ________________________________________________. Executive: (Cabinet) - Prime Minister - Ministers - Ministries
Legislature: (Parliament) - Dewan Negara - Dewan Rakyat
Judiciary: - Federal Court - Court of Appeal - High Court - Sessions Court - Magistrate Court
Executive (PM and cabinet members) The executive power covers the formulation of policy and the carrying out of the actual tasks of government. Legislative (Parliament: DN & DR) The legislative function relates to the making, altering and repealing of laws by the appropriate organ of the State. Judiciary (Courts) The judicial task is to uphold the Constitution, adjudicate disputes, administer justice and interpret laws.
ď‚ž Headed
by the Prime Minister, who should be a member of the Lower House of parliament (House of Representatives) who, in the opinion of the YDPA, commands a majority in Parliament.
ď‚ž The
cabinet is chosen from among members of both Houses of parliament and is responsible to the development and welfare of the people in Malaysia as a whole.
The
Legislative power in Malaysia is divided between the Federal and State legislatures. Federal legislation is made by the Parliament. State legislation is handled by the State Legislative Council. Functions: To enact the law To amend the law To repeal the law (where necessary)
Judiciary
is a branch of government that is concerned with the administration of justice. It upholds law and order by ensuring that all are equally treated before the law. It is basically responsible for the implementation and interpretation of the laws of the country.
Parliamentary Democracy Voters elect members of Parliament, specifically Dewan Rakyat, party that wins majority seats form the government.
Constitutional Monarchy The YDPA’s powers are prescribed in the FC, most of the powers are exercisable on the advice of cabinet members (jemaah menteri).
Constitutional Supremacy The FC is supreme law, any other law contradicting it will be void. All governmental functions must be exercised in accordance with the FC.
Primary Sources of Law
Unwritten Law
Written Law
Federal Constitution
State Constitution
Legislation
Legislation
Subsisiary Legislation
Subsidiary Legislation
English Law
Judicial Precedent
Customs
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FEDERAL AND STATE CONSTITUTION The Federal Constitution (FC) ď ˝ Art 4- The supreme law of the land; any laws passed after Merdeka Day which is inconsistent with this Constitution shall to the extend of inconsistency, be void. The State Constitutions ď ˝ There are also Constitutions of the 13 States comprising the Federation, which forms part of written law in Malaysia. 10
FEDERAL AND STATE LEGISLATION
Legislation refers to law enacted by a body constituted for this purpose. In Malaysia, laws are legislated by the Parliament at the Federal level and by various State Legislative Assemblies at the state level.
Legislation refers to law enacted by : (a) Parliament (b) State Legislative Assemblies PARLIAMENT
STATES LEGISLATIVE ASSEMBLIES
Enacts law at Federal level
Enacts law at State level
Within limits prescribed by Federal Constitution
Within limits prescribed by State Constitution
Law enacted before 31.08.1957 are called Ordinance
Law enacted by State Assemblies are called Enactment except Sarawak laws are called Ordinance
Law enacted after 31.08.1957 are called Acts
State Legislative Assembly can enact law in matters listed in List II of the Nine Schedule
Parliament can enact laws in matters listed in list I of the Nine Schedule 12
Subsidiary Legislation/Delegated Legislation ď‚ž Interpretation
Act 1948 and 1967: Subsidiary Legislation means any proclamation, rule, regulation, order, notification,or other instrument made under any Ordinance, enactment or other lawful authority and having legislative effect
ď‚ž Subsidiary
Legislation is very important as legislation by the Parliament and the State Legislatures is insufficient to provide the laws required to govern everyday matters. Subsidiary legislation deals with the details about which legislature has neither the time nor the technical knowledge to enact laws. 13
Example: The Board of Engineers Malaysia (BEM) is a statutory body constituted under the Registration of Engineers Act 1967. The appointment of the Board Members and the Registrar is made by the Minister of Works. BEM’s functions: 1. Maintain the register 2. Assess academic qualifications (by EAC) 3. Regulate the conducts and ethics of the engineering profession
Unwritten law is simply that portion of the Malaysian law which is not written. i.e. law which is not being enacted by the Parliament or State Assemblies and which is not found in the written Federal and State Constitutions.
Unwritten law is found in cases decided by the courts, local customs, etc. The unwritten law comprises the following: ◦ ◦ ◦
English Law Customs Judicial Precedents 15
Customary Law CL is the regular pattern of social behavior, accepted by a given society as binding upon itself. It prescribes behavior that has been found to be beneficial as a means of generating harmonious interpersonal relations and to solve conflict. Some of the customs of local inhabitants have been accepted as law by the court
Chinese
Malay
• Chinese Customary Law
Indians • Indians Customary Law
• Adat Perpatih • Adat Temenggong
Customs of local inhabitants
Judicial Precedents
Judicial Precedents are decisions made by a previous judge in previous cases that have similar situations.
Decisions of these courts were made, and still are being made systematically by the use of what is called the ‘doctrine of binding judicial precedent’ or the rule of stare decisis i.e. to stand by cases already decided. 17
Superior Courts
Federal Court
Court of Appeal
High Court of Malaya
High Court of Sabah & Sarawak
Sessions Court
Sessions Court
Magistrate Court
Penghulu Court
Magistrate Court
Penghulu Court
Syariah Court
Subordinate Courts
Syariah Court
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1. Federal Court
ď‚ž Federal
Court is the highest court in Malaysia.
ď‚ž Instituted
by Article 121 of the Federal Constitution.
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The Jurisdiction of the
Federal Court
1.
Determine a law made by Parliament or by the Legislature of a State is valid or invalid.
2.
Decide on disputes on any other question between States or between the Federation and any other states in Malaysia.
3.
The Federal Court shall also have the jurisdiction to hear and determine any cases (or appeal) brought to it by the Court of Appeal and High Court on criminal and civil matters. 20
2. Court of Appeal
Section 50 and 67 of the Courts of Judicature Act 1964 The court can hear both Civil and Criminal appeal cases.
Civil 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. ◦ If the amount is less than RM250,000 the parties must get the permission from the Court of Appeal.
Criminal Appeal Cases ◦ Has jurisdiction to hear and determine any appeal against the decision of the High Court.
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3. High Court (HC)
Established under Article 121(1) of the Federal Constitution.
There are 2 High Courts of co-ordinate jurisdiction in Malaysia: (i) High Court for West Malaysia (ii) High Court in Sabah and Sarawak
Each of the two High Courts is headed by a Chief Judge.
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Sections
22, 23 and 24 of Courts of Judicature Act 1964 lay down the criminal and civil jurisdiction of the High Court.
Criminal Cases Deals with all offences including offences punishable with death. Civil Cases Has unlimited jurisdiction to try all civil proceedings within the local jurisdiction of the court. 23
4. Session Court Civil
cases All suits where the amount in dispute or the subject matter does not exceed RM 1,000,000. May entertain cases above RM 1,000,000 if it concerns motor vehicles accident, landlord and tenant distress.
Criminal
cases All offences other than offences punishable with death. May impose any sentence allowed except sentence of death.
*Jurisdiction as provided by Subordinate Courts (Amendment) Act 2010 24
5. Magistrates Court This court has the jurisdiction to hear civil cases and criminal cases. There are two (2) types of classes of magistrate i.e. First Class and Second Class
First Class Court: Criminal – To try all offences punishable with up to 10 years imprisonment or with fine only and offences related to punishment for robbery and house breaking by night. (Sec 85 Subordinate Courts Act) ◦ Civil - To try all litigations where the matter in dispute or subject matter does not exceed RM 100,000.00. ◦
Second Class Court: Civil – Hear claims where the subject matter does not exceed RM 10,000.00. ◦ Criminal – 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. ◦
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