AMYLIA BINTI ISMAIL Malaysian Legal System INTRODUCTION 1.0 what is Law? The word “law” is difficult to define, particularly as it is used in many different ways. It contains, however, the concepts of orderliness, universality and objectivity. The term ‘law’ is used in many sense, we speak of the laws of physics, laws of games, laws of state or law of traffic. When we speak about the law of the State we use the term “LAW” in a very special and strict sense, and this law may be defined as rule of human conduct, imposed upon and enforced among the members of a State. When we speak of the law we usually imply the whole of the law, however it may have been formed, much of the Malaysian law has been created out of the English customs, but a great part of the law has been created by statute i.e. Act of Parliament. Human being resorts to various kinds of rules to guide their life. Different people perceive law differently. For the lawyers, they see it as their exclusive preserve as laypersons depend largely on them to explain the intricacies of the law. For the average person he may see it as a nuisance for having to comply
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AMYLIA BINTI ISMAIL
Malaysian Legal System
INTRODUCTION
1.0 what is Law?
The word “law” is difficult to define, particularly as it is used in many
different ways. It contains, however, the concepts of orderliness, universality
and objectivity. The term ‘law’ is used in many sense, we speak of the laws
of physics, laws of games, laws of state or law of traffic. When we speak
about the law of the State we use the term “LAW” in a very special and strict
sense, and this law may be defined as rule of human conduct, imposed upon
and enforced among the members of a State.
When we speak of the law we usually imply the whole of the law, however it
may have been formed, much of the Malaysian law has been created out of
the English customs, but a great part of the law has been created by statute
i.e. Act of Parliament.
Human being resorts to various kinds of rules to guide their life. Different
people perceive law differently. For the lawyers, they see it as their exclusive
preserve as laypersons depend largely on them to explain the intricacies of
the law. For the average person he may see it as a nuisance for having to
comply with various procedures, which he or she does not understand.
Thus moral rules and ethics remind us that are immoral or wrong to tell lies
or engage in drugs or to get involved in a brothel business. If we breach
these moral and ethics we may lose friends or their respect.
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Law performs various functions in society and its pervasiveness may impinge
our lives. Amongst others, we are compelled by law to have a birth
certificate and an identity card etc
1.2 What is justice?
In Malaysia we practice adversarial system, which means that it is the parties
through their advocates who control the course of inquiry. The parties decide
what evidence shall be adduced subject to the rules of admissibility and it is
on the basis of the admissible evidence adduced by the parties that the court
must come to a decision. The judge acts as an impartial referee, there to
ensure that the parties comply with the rules of procedure and evidence in
presenting a case.
Justice refers to fairness or rightfulness. However, what is justice in Malaysia
may not necessarily mean justice in other parts of the world. Justice must not
only must be done but seen to be done. That’s why we have open court
system.
1.3 Rule of Law
The rule of law is the essential doctrine of the British Constitution. It is not
written code of rules but the general principle implicit in the common law
which the courts will apply, unless some statute can be quoted modifying the
application.
The rule of law cover three essential aspects.:-
a. no person can be punished except for a definite breach of law, established
in the ordinary law courts of the land
b. No person is above the law and everyone must bear the legal
consequences of his own act. Equality before the law.
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c. There is an absence in the UK of any special body of courts to try cases
where the citizens is in conflict with the government unlike in France where
litigation between citizens and state officials is dealt with by special
administrative courts.
It is often stated that it is from the principle of the rule of law, all forms of
liberty, persons liberty. liberty of speech and freedom of press are derived.
1.4 Classification of Law
Law can be classified into various areas. Generally speaking it ca be
categorized into three main areas.
1. Public Law and Private Law
2. Substantive Law and Procedural Law
3. Private International and Public International Law
1.5 Public Law
Public law regulates the relationship between the citizen (an individual or
group of people) and the State. Example. In a murder case where Daniel
murdered Budin. Therefore here Daniel has committed a crime which is
against the State (King’s law) – R v Daniel. (R= REX). Public law is divided
into constitutional law, administrative law and criminal law.
Constitutional Law – defines the structure of the principal organs of
government and their relationship to each other, and determine their
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principal functions and the rights of individual under that government.
Example in Malaysia:
Article 6(1) of the Federal Constitution:- says no person shall be held for
slavery.
Article 8(1) of the Federal Constitution: - says all person are equal before the
law and entitled equal protection of the law.
Administrative Law – is defined as that body of legal principle which concerns
the rights and duties arising from the impact upon the individual of the
actual functioning of the executive instrument of the government. In
synopsis we can terms it as the law that regulates the duties and exercise of
powers by administrative authorities.
Criminal Law – deals with acts or omissions which are offences against the
State and for which the offender is liable to be tried and if found guilty, will
be punished according to the law. Crime is defined as of disobedience of the
law forbidden under pain of punishment. The punishment for crime ranges
from death or imprisonment to a money penalty or absolute discharge
1.6 Private Law
Private law deals with the relation between one citizen and another citizen. It
is also known as Civil law. It includes contract, Family Law, Tort, Land Law
and commercial law in general. Legal action may be commenced or initiated
by individuals seeking for damages or compensation.
Example where Intan and Hezrynda entered an agreement and Hezrynda
breached the contract. Here Intan has a cause of action against Hezrynda. In
this situation Intan will be the Plaintiff because she is the one who is
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initiating the action and Hezrynda will be the defendant. Intan v Hezrynda
1.7 Substantive Law
Substantive law is the statutory or written law that governs rights and
obligations of those who are subject to it. Substantive law defines the legal
relationship of people with other people or between them and the state.
Substantive law stands in contrast to procedural law, which comprises the
rules by which a court hears and determines what happens
incivil or criminal proceedingsIt the body of rules of law in the above
branches. Substantive law defines crimes and punishments (in the criminal
law) as well as civil rights and responsibilities in civil law. It is codified in
legislated statutes or can be enacted through the initiative process Thus ,
murder is common rule offence. Bigamy is a statutory offence and Passing
off is a tort at common law.
1.8 Procedural Law
Procedural law deals with the method and means by which substantive law is
made and administered. The time allowed for one party to sue another and
the rules of law governing the process of the lawsuit are examples of
procedural laws..t lays down the rules governing the manner in which a right
is enforced under civil law, or a crime prosecuted under the criminal law. A
legal action is started by a writ in civil cases and by summons in criminal
cases.
1.9 International Law
Includes Private and Public International Law.
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Public international law deals with relationship between states. E.g. Border,
territorial waters etc. Certain writers hold that there is no world authority
with power to enforce the rules or the laws.
Private International law is concerned with the application of various national
laws of the facts of a particular case involving two or more countries eg.
System of law applicable to a marriage between 2 different nationals in a
third country. Thus Nurul, a Malaysian national, makes a contract in Madrid
with Jeniffer. If Nurul wants to take an action against Jeniffer, the court will
have to determine by the rules of the private international law which law is
to be applied. Malaysian or Spanish law?
1.10 SOURCES OF LAW
The main sources of law in Malaysia can be categories as follows
a. the Federal Constitution
b. the 13 Constitution of the States comprising the Federation
c. Federal law made by Parliament
d. State laws made by State Assemblies
e. Federal and State Subsidiary Legislation
f. Principles of English Law
g. Judicial Precedent/
h. Islamic Law
1.10.1 FEDERAL CONSTITUTION
Malaysia has a written constitution unlike the United Kingdom. The Federal
Constitution is the supreme law of the land. Generally, any law which is
inconsistent with the Federal Constitution is invalid. The Malaysian
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Parliament functions under a written constitution and is governed by it. Its
law making power is limited by the provisions in the constitution. However
our Parliament as a legislative body has the capacity to amend , repeal and
make new constitution by way of two third majority vote of the both houses
of Parliament. ( Dewan Negara & Dewan Rakyat). The Federal Constitution
also establishes a constitutional Monarchy and a Federal System of
Government.
In England Parliament is Supreme and has full power to make law on any
matter.
According to Dicey:
‘ The Principle of Parliamentary sovereignty means neither more nor less
than this, namely that Parliament has, under the English constitution, the
right to make or unmake any law whatever; and further that no person or
body is recognized by the law of England as having a right to override or set
aside the legislation of Parliament’
How far is this true after the signing of treaty of Rome in 1972? How
supreme is Parliament?
1.10.2 THE STATE CONSTITUTION
The 13 States of Malaysia have individual constitutions, which provide for a
single chamber Legislative Assembly in each state. A Menteri Besar or a
Chief Minister heads the government. (In the Malay States a cabinet known
as the Executive Council assists the Menteri Besar) In Sabah & Sarawak,
members of the Executive Council are known as State Ministers.
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1.10.3 LEGISLATION
It refers to laws made by a person or body, which has power to make law. In
Malaysia, Parliament and Legislative Assemblies have powers to enact laws
in their respective areas. Laws made by Parliament may extend to the whole
country. However, laws enacted by a State Assembly only apply to that
particular state only.
Act - Federal Law made by Parliament
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an emergency when
Parliament is not sitting concurrently.
1.10.4 ENGLISH LAW
The supremacy of English Law remains in Malaysia even after independence.
The English Law is adopted so far as they were suitable to local conditions.
Many of the local laws especially those affecting trade, commerce and
banking were patterned on English Models (or in some instance other
colonial laws) e.g. Section 3 and 5 of the Civil Law Act 1956 provide that
English law relating to contract is applicable in Malaysia in relation to areas
not covered by our legislation or our case law. Our courts have also tended
to look towards the English Law to aid them in the interpretation of the