Asean legal system of Malaysia

Pannassastra University of Cambodia Commitment to Excellent

Subject: legal System of ASEAN NATION Professor: Samreth Mammoun

Present by

1. SORN PISETH ID : 15433

2. SAY SAKSOPHANNA

ID: 15217

Legal system in Malaysia

Content

I. Tracing the Development of the Legal System

II. The Administration of Justice

III. Other Courts with Specialized Jurisdiction

IV. Other bodies and Institutions that are related

to the Judiciary.

Introduction

• Malaysia is a federal Constitutional monarchy located in Southeast Asia.• Malaysia has a total landmass of 329,847 square Kilometers, separated by the south China

Sea into two Similarly size regions, “Peninsular Malaysia and East Malaysia.) • The Capital city is Kuala Lumpur• The Largest city is Putrajava • The official languages is Malaysian • The Population was 28.33 millions• The ethnic groups are:

– 50.4% are Malay – 23.7% are Chines – 11.0% are Indigenous – 7.1% are Indian – 7.8% other.

• King of Malaysia is Abdul Halim

• Prime Minister is Muhyiddin Yassin

• Legislation power is divided between federal and state

legislature.

• Malaysia is a federation of 13 states and three federal territories

• These are divided between two regions, with 11 states and two

federal territories on Peninsular Malaysia and the other two states

and one federal territory in East Malaysia.

• Each States is divided into districts, which are then divided into

Mukim.

Chapter 01Tracing the Development of the legal System

1. Early Malaya:

• The administration of justice and the legal system of Malaysia prior to the British colonial rule in Malaya are generally scanty.

• There are more particularly personal laws, the Customary laws of a particular area, together with Islamic law were applicable.

• the Sultans or their chiefs invariably resolved all the disputes.

2. The Malacca Sultanate:

• It was as a crossroads of trade between the Indian Ocean

and East Asia.

• The establishment of Malacca as a port serving the trade

between the East and West and Subsequent embraced of

Islam Facilitated the spread of this religion and the Islamic

legal Concepts.

• Before the arrival of Islam, the laws applicable in this land

were the Malay Custom laws.

Malacca Sultanate Cont. • This system was organized on the basis of territorial

units, with the constitutional and judicial authorities vested in the group consist of King (Sultan), Chief Minister (Bendahara), Chief of Police (Temenggung), Harbour official (Syabbandar) and Few other Official.

• There were two legal digests during the period of the Malacca Sultanate:1. Undang-Undang Melaka (Laws of Malacca) 2. Undang-Undang Laut Melaka (Maritime laws of Malacca).

• In this Sultanate:– Bendahara exercised both political and Judicial Functions. – Temenggung was responsible in apprehending Criminals and

Maintaining the prison and peace.– The Syabbandar was in charge of the Port, trader and collection

of taxes.

Malacca Sultanate Cont.

• After arrival of Islam, the influence of Customary laws

was weakened.

• Islam was adopted as the religion of the state,

customary law was administered together with Islamic

law.

• The influence of Islamic law is evident when it comes

to the alternative of penalties to customary law for

every offence.

• This coming of Islam make the beginning of the

introduction of Syairah law in this land.

• 1511 to 1643 Malacca Sultanate ended when Malacca came under the occupation of the Portuguese.

• 1643 to 1795 is under the occupation by Dutch. • Although the British occupied Malacca for a short period, but in

1801, it was restored to the Dutch rule. • Subsequently, there was reoccupation by the British from 1807 till

1818. • Finally under the term of Anglo Dutch Treaty 1824:

– Under the Portuguese and the Dutch, Magistrates were appointed to settle Civil Dispute and try Criminal Case.

– Portuguese and Dutch law were applied generally– In cases involving the Local people, Muslim law and Malay Customs continued

to be applied.

British Colonial Rule ( 1786-1941)

• British Intervention

– Between 1786-1957:

• is the next major landmark in the legal history of Malaysia,

• the period of British intervention,

• and that which still has a major impact on the present fabric of

the legal system.

• Straits Settlements:

– It’s the first stage in British Intervention began, when the east India Company, which had created outposts:

• In Penang (1786) • Malacca (1834) • Singapore (1819)

– It was transferred them to the British Crown and Thus making these outposts part of the British colonies.

Straits Settlements Cont.

• The judicial system in the Crown colony first evolved: – By first charter of justice of 1807,• And established the Courts of judicature in Penang.

– By second charter of Justice of 1826:• A united Courts of Judicature was established for the three

settlements of Penang, Malacca and Singapore.

• These charters of Justice were significant for they herald the reception of the English common law and equity into the Malay Peninsula.

Federated Malay States (FMS)

• Participated by Perak, Selangor, Pahang and Negeri Sembilan.

• Reason: – To Set up uniform administration – To create a balance economic growth – To allow interstate projects to be carried out – To Curb growing power of British residents.

FMS Cont.• Prior to 1895:– Each of the states had its own judiciary for the

administration of justice. • After 1895:– Federation was formed (four states) – With the introduction of a common form of legislation

passed in each of the four states.

• A common court of appeal, called the Court of commissioner was established.

FMS Cont.

• After The court of the judicial Commissioner was established in FMS:

– The number of other inferior Courts were also

established:

• The Courts of the Senior Magistrates

• Court of Magistrates of the first class

• And the Court of Magistrates of the second class.

• The Courts of the Kathis and Assistant Kathis and the Court of Penghulus were Established.

• It was provided that: “whenever a senior magistrate heard an appeal from the decision of a kathis or Assistant Kathis, the senior Magistrate, shall summon one or more of the principle Muhammandans of the state to aid him with advice” • 1905:– Supreme Court of the FMS superseded the Court of the judicial

Commissioner. – Replaced the 1895 Court of Judicial Commissioner– The latter replaced the senior magistrate’s court.

FMS Cont.

Unfederated Malay Stated (UFMS) • Participated by Perlis, Kedah, Terengganu, Kelantan,

Johore.• Formed in 1909 via Bangkok Treaty • A British advisor is appointed to assist the sultan in

the administration• All the states have a great potential in economic

and trading activities. • Sultan remained independent and powerful

compare to the federated Malay states.

Japanese Occupation (World War ll): 1942-1945

1. The Military Or Special Court:– Was set up to try Civilians charged with offences under

the Japanese Maintenance of public Peace, “Law and order”.

– It was presided by a Japanese judge.

2. The Civil Court:– Their jurisdiction was confined to civil and Criminal case

only.

Post-war Period: 1946-1956

• British Military Administration (BMA):– 1945 • Surrender of the japan • Reinstatement of British Colonial.

• Malayan Union – 1946 • British Military Administration was replaced by The British

Malayan Union.

Malayan Union Cont.

• Reason:

– To protect the priorities (Economic investments) of the British in Malaya.

– To combine all the province (Straits settlements, Federated and Unfederated Malay states) in crease the administrative efficiency.

– To prepare the local Malays to form their own government.

Federation Of Malaya (FM)• On 1st February 1948:– Malayan Union proved unpopular.– Was superseded by the Federation of Malaya

• The court ordinance 1948 established a new structure of subordinate Courts comprising: – The session court – Magistrate’s court – And Penghulus’s Court.

• On 31st August 1957, the federation of Malaya become an independent and sovereign nation.

Chapter: 02 The Administration of Justice

Judicial Power • The federal Constitution provides for the exercise of

governmental power by the legislature and the executive.

• It also provides for the establishment of the judiciary to exercise the judicial powers conferred on it by the constitution and under federal law.

The Malaysian Judicial System is composed Two Kinds of Court: 1. The Superior Courts:• The Federal Court• The Court of Appeal • The High Court:• The High Court in Malaya • The High Court in Sabah and Sarawak.

2. The subordinate Court:1. The Sessions Court 2. The Magistrates’ Court 3. The for Children

• Member of each Courts:

The Federal Court consists of:• a president of the Court (styled as the Chief justice of the federal Court) • President of the Court of Appeal,• Chief judges of the high court,• And 7 other judges

• The Court of Appeal consist of:

• A chairman (President of appeal)

• Ten judges

• High Court Consists of: • A Chief Judge • And not less than 4 other judges • The number of other judges of the High

Court may not exceed:• 47 for the High Court in Malaya• 10 for the High Court in Sabah and

Sarawak.

Are appointed by Yang di Pertuan

Agong on advice of the Priminister and after consultation

with the conference of Ruler.

The Chief Justice of the Federal Court

The president of the Court of

Appeal

The Chief Judge of the high Court

And other judges of the Federal Court

Court of appeal

High Court

• Term of Office and Remuneration of Judges of the Federal Court.

– A judge of the federal Court is to hold office until he attains the age of sixty five or such later.

– Not being later than six months after he has attained that age.

– A judge of the federal Court may at anytime resign his office by writing under his hand addressed to the Yang di Pertuan Agong, but he may not be removed from office except in accordance with provisions of the Constitution.

Removal from office may be made upon the following ground that is:

• Breach of any provision of the Judges’ Code of ethic or on the ground of inability.

• From infirmity of body or mind or any other cause.

How does the court system of Malaysia work?

(2) The Court of Appeal

The Court of Appeal hears appeals from the High Court relating to both civil and Criminal matter.

(1) The Federal Court The Federal Court hears appeals from the

Court of Appeal.

(3) High Court

A) Civil Jurisdiction: - these include matters

relating divorce and Matrimonial cases

-appointment of guardians of infants

- The granting of probate of wills and testaments and

letters of administration of the estate of deceased personsBankruptcy and other civil

claims where the amount in dispute exceeds RM 1,000,000

B) Criminal Jurisdiction

- offences which carry the death penalty

C) Appellate Jurisdiction

the HC may hear appeals from the Magistrates and sessions Court in Both Civil and Criminal matter.

The amount in dispute in any civil matters must exceed RM 10,000 except where it involved a question of law

Jurisdiction • Jurisdiction means “the right to decide” or

“Power of a court to adjudicate cases and issue orders”

• Territory within which a court or government agency may properly exercise its power.

1. Original Jurisdiction in FCM – Is the federal court perform a vital constitutional

function. – A Court’s power to hear and decide a case before any

appellate review.

2. Referral Jurisdiction:

– It is an authority to determine constitutional questions which have arisen in the proceedings of another court by referred to it for a decision by way of a special case stated.

3. Advisory Function• The Yang Di Pertuan Agong may refer to the

federal Court for its opinion on any question regarding the federal Constitution or any Constitutional issue, and the opinion of the federal Court shall be pronounce in an open court. (article 130)

4. Appellate Jurisdiction

• The criminal Appellate jurisdiction of Federal Court:

– Encompasses the hearing, – And determination of criminal appeals from any

decision of the Court of appeal. – In its appellate jurisdiction in respect of any criminal

matter decided by the High court in its original jurisdiction.

• The Civil appeals Jurisdiction: – It has jurisdiction in respect of appeals form the court

of appeal with leave of the federal Court.