Legislation Legislation refers to law enacted by a body
constitutedfor this purpose. Legislationiscarriedout byparliament
at theFederallevel and by the various State Legislative Assemblies
fortheir respective states. Article 44 of the FC. Laws enacted by
Federal Parliament: Acts but thosemade between the period of the
!alayan "nion in#$4% and #& September #$'$ are called
(rdinances. Laws made by SLA: )nactments. Sabah*Sarawa+:
(rdinances. "nder Article #'& of FC the ,-PA can proclaimastate
of emergency and during that duration ofemergency e.cept when both
/ouses of Parliamentare sitting concurrently the ,-PA may
promulgatelaws whichwill becalled(rdinances if satisfiedthat
certaincircumstances render it necessaryforhim to ta+e immediate
action. Federal and State Legislatures are not supreme. 0hey
enactlaws withinthe limitsprescribedbythe Federaland
StateConstitutions. Federal Parliament: List 1 of the 2inth
Schedule. SLA: List 11 of the 2inth Schedule. 3oth: Concurrent
list. !atters not enumeratedinanyof the lists will fallwithin the
authority of the states. 4States e.erciseresidual power53ills 3ills
introduced in Parliament may be classified asPrivate 3ills Private
!ember6s 3ill /ybrid 3ills or7overnment 3ills. Private 3ills: 3ills
affecting limitedor particularpersons or group of persons
associationsorgani8ations or bodies. Private !ember6s 3ill:
1ntroduced by any member ofthe legislature other thana !inister or
Assistant!inister. /ybrid 3ills: !ay be of general application and
areintroducedbyeithera!inisterorprivatememberbut they belong to
thatclass ofbillswhichin theopinion of the Spea+er or President of
Senate as thecasemaybe appear toaffect individual rightsorinterests
adversely. 7overnment 3ills: -eal with matters of governmentpolicy
and are of general application. 1ntroduced byministers. Legislative
Process A bill is normally presented to Parliament by the
!inisterresponsible for the particular portfolio. 0his3ill
maybefirst introducedineither/ouse. 1fit ispassed after debate and
voting in the chamber from which itoriginates it is sent to the
other chamber. 9hen it has been approved by both /ouses it is
presentedto the ,-PA for the :oyal Assent. Abill becomes lawon
receiving the :oyal Assent butArticle %%4'5: ;no law shall come
into force until it has beenpublished; Stages of Passinga3ill:
First :eading Second:eadingCommittee Stage and 0hird :eading. A
minister who wants to introduce a 3ill is re?& in AA.
#4&& lawyers 4volunteers5 As legal aid scheme is meant only
for the poor and needypeople see+ing legal aid must undergo a ;mean
test;. Applicants who own assets of above a certain level maynot .
0he facts onwhich the proceesings arebased e.ist or alleged to have
occured4. Any land the ownership of which isdisputed is situated
within the local=urisdiction. Specific =urisdiction:#. -ivorce or
matrimonial causesA. Admiralty cases>. 3an+ruptcy and
companies4. Appointment andcontrol ofguardiansofinfants'.
Appointment and control of guardians and+eepers of the
personandestates ofidiots mentally disordered personsunsound
mind.%. 7ranting altering or revo+ing probatesof wills and letters
of administration ofthe estates of deceased persons. Criminal
7eneral rule: /igh Court has=urisdictionover people 4citi8ens
andnonciti8ens5 andoffences committedwithin its territory.
).ception: Eurisdiction over people4citi8ens
andpermanentresidents5andoffences committed outside
!alaysia4e.traterritorial =urisdiction5. 0he Attorney7eneral
maye.tendthee.traterritorial=urisdictionof the/ighCourt to any
offence under any writtenlaw committed abroad by citi8ens
andpermanent resident. Appellate Civil 2o appeal to /igh Court from
a decisionof a subordinate court in any civil cause ormatter where
the amount in dispute or thevalue of the sub=ect matter is less
than:!#&&&&. !onetary limit does not apply to
decisionsof a subordinate court in proceedingsconcerning
maintenance of wives orchildren. Criminal /igh Court can hear
appeals fromsubordinate courts according to any law inforce within
territorial =urisdiction. 2o appeal can be made to the /igh
Courtfromasubordinatecourt concerninganyoffence punishable with
fine only note.ceeding :!A'. 2o appeal by person who has
pleadedguilty. 2o appeal against ac# of CEA: /igh Court can
revisecriminal proceedingsinsubordinatecourtsin accordance with any
law. Sec >A of CEA: Power to call for ande.amine the records of
any civilproceedingsbeforeanysubordinatecourtsto satisfy itself as
to the correctness legalityof any proceedings. Sec >' of CEA:
/igh court may give to thesubordinate court directions for the
furtherconduct of thecase@ inanysubordinatecourt at any stage of
the proceeding. :eviewof the-ecisions of other
Eudicial*Juasi@Eudicial bodies :eviewdecisions of & 2ovember
#$$A. Article #?A: consists of Chief Eustice of theFederal Court
Chief Eudges of the /igh
Courtsandtwootherpersonswhoholdorhaveheldoffice of rge Fed Court of
/igh Court appointedby the Conference of :ulers. -ecision made by
the ma=ority of its membersand is final @ cannot be challenged in
any courtson any ground. Eurisdiction ).clusive =urisdiction over
all proceedings by oragainst the ,-PA or the :uler of a state in
hispersonal capacity. Suchproceedingscannot beinstitutedwithoutthe
consent of the Attorney 7eneral @ to ensurethere is a prima facie
case. (nly citi8ens of !alaysia have the right toinstitute such
proceedings. 9here the ,-PA or :uler of a state is chargedwith an
offence under any law in the Special Courthe will cease to e.ercise
their functions. 9here a ruler is convicted of an offence
andsentenced to imprisonment for more than a day hewill cease to be
the :uler unless he receives pardonfrom the Conference.$. Court for
Children Aimistoprotecttheinterestsofthechildrenwhoappearbefore
them. Courts Act A& provides measures that are intended to
ta+echildren away from the adult criminal =ustice system and
toprotect them from publicity. A child offender must be detained in
a place designatedunder the CA A& @ accomodation in police
station cellor loc+@up separate from adult offenders. CFC must sit
in a building or room different fromthat in which sittings of
ordinary courts are held. Proceedings are not open to public.
Persons permitted: court members and officersthe
childintrialparents guardians advocatesand witness and othe persons
determined by thecourt. !edia may not reveal any particulars that
may leadto identification of the child offender. A child means a
person under #? a person who hasattained the age of criminal
responsibility CFC comprises: A magistrate who must be assistedby
two advisers one of whom must be a woman. Absence of either one or
both advisers renders theproceeding unlawful. Eurisdiction and
Powers 0ryall offences bychildoffenders e.cept thosepunishable by
death. 0here are several orders the court may impose upona finding
of guilt Sendingthechildtoapprovedinstitutionsuchas/enry 7urney
School 9hipping not more than #& stro+es of light cane Any term
of imprisonment which could be awardedby a Sessions Court if the
offender is aged #4N andthe offence is punishable with
imprisonment. 0he PP any child or his parent aggrived by the order
ofthe CFC may appeal to the /igh Court in
accordancewiththeprovisionsset out intheCriminal
ProcedureCode.Customary La% and Adat Customary lawderived
fromcustoms and traditionsobserved by !alays over the centuries.
Aregular patternof social behavior whichhas beenaccepted by the
bul+ of a given society as binding uponits members. Customary laws
are personal laws which are applicableto particular racial
religious or ethnic groups. 0he applicationof customarylaws
in!alayia has beenaccomodatednthe legal systemsincepre@colonial
timesalthoughactual formali8ationof the status occuredafter3ritish
coloni8ation. Customs of the plural population are varied and
somecustoms particularly in the areas of family law andcustomary
forms of land tenure are given legal recognitionin =udicial
decisions and statutes. Case: Sahripv.!itchell H)ndain4#?DD5
thecustomaryforms of !alay land tenure which provided for the
paymentif a tithe was accepted by the court.#. !alay Adat Adat
Perpatih Adistinct tradition practised among the !alays inpresent
day2egeri Sembilanand2aningin!ela+aareas settled by !inang+abau
immigrants fromSumatra. Adat
perpatihispractisedinsuchmattersaslandtenure inheritence
lineageandtheelectinof thetraditional chiefs or adat
officialdomsuchas thelembagas undangs and the ,ang -i Pertuan
3esar. !ost conspicuous characteristic of the adat perpatihis the
matrilineal form of social organi8ation. A lua+ has four clans and
each lua+ is controlled byan undang. Adat perpatih finds e.pression
in traditional versesand sayings of the matriarchal tribes in
2egeriSembilan. Powerinthefamilywaslaidinthehandsofthemama+
4mother6s eldest brother5 then in the handsof sub@tribe heads
4perut5 who were called buapa+.0hisisfollowedbythetribal chiefs6
lembaga theterritorial heads undang and finally the :uler
,ang-ipertuan 3esar or ,amtuan. 0hebuapa+wouldbeelectedbythemama+
thelembaga by the buapa+ the "ndang by the lembagaand the ,amtuan
by the "ndang. A ,amtuan must come from the royal family.
-emocratic @ e.ists in a peasant society. 1ncriminal
mattersthefamilywasresponsiblefor itsmembers.
9henacrimewascommitted theaccusedwould be tried by his own family.
At the end of the trialifthefamilycametotheconclusionthat
theaccusedwasguilty therewouldbenoalternativebut to+illbanish or
enslave him. Adat perpatih was +een on penalties such as
restitutionand compensation of the in=ured rather than punishmentor
revenge on the offender. 3ut when a victim 4bread winner5 was
murdered as acompensation the +iller6s tribe was compelled
tosubstitute ie of their family members for the victim orpay blood
money to the victim6s family. Adat perpatih gives too much
importance tocircumstantial evidence. 1n a case of theft even
thoughthe theft had not been proved but if the suspect
behaveddifferently his behaviour itself would be enough
undercircumstantial evidence to find the suspect guilty. Adar
lawwithrespect of landis givenstatutoryrecognition 0anahpesa+a:
ancestral landthat
canonlybeinheritedbyfemaledescendantsofadeceasedholder. 0here is a
=udicial authority stating thattanah pesa+a in 2aning is not
transferable to aperson who is not a member of the owner6s clan.
/arta sepencarian: property =ointly ac:afflesappointed#Amagistrates
totryminorcivil and criminal cases under supervision of the
:esident.!ela+a (ccupied in #D$' but returned to -utch in #?#?.
-uring that brief occupation the 3ritish did not give
seriousattention to the reorgani8ation of the administration
of!ela+a. !ela+a was retroceded under #?A4 Anglo@-utch 0reaty.
3ritish planned to establish a regular administration of law.0he
Straits Settlement 4#?A%5 !ela+a
PenangandSingaporewereincorporatedintotheStraits Settlemets.Second
Charter of Eustice 4#?A%5 7ranted by Bing 7eorge 1C to the
Settlements. 0his charter repealed such parts of the First Charter
whichconferred =urisdiction upon the Court of Eudicature inPenang @
replaced by a new court of Eudicature for PenangSingapore and
!ela+a. Eudiciallyinterpretedas having introduced
)nglishlawe.isting in )ngland on AD 2ovember #?A% into all
threesettlements. Sir )dward Stanley: 1t gave the local inhabitants
the freee.ercise of their religions customs usages and habits. 0he
administration of =ustice after the grant of theSecond Charter of
Eustice remained unsatisfactory. :ecorder: (nly one based in Penang
seldom visited!ela+a and Singapore. Lay =ustices: made many bad
decisions.0hird Charter of Eustice 4#?''5 0o remedy the
deficiencies in the system. :eorgani8e the courts system. Lay
=ustices ceased to sit. :epealed the second charter of =ustice only
to the e.tentnecessary to reorgani8e the Court of Eudicature.
0hecourt wassplit intotwo: oneforPenang onefor!ela+a and Singapore.
)ach with its own :ecorder and:egistrar. )nglish law was introduced
into the Straits Settlements notonly through Charters of Eustice
but also legislation. )nglish and 1ndian statutes enacted before
#stApril#?%D.:eception of )nglish law in the !alay States
!alaystates hads basiclawbefore3ritishinterventionI!alay adat and
Syariah law. :E 9il+inson: ;0herecanbenodoubt that !uslimlawwould
have ended by becoming the law of !alaya had not3ritish Law stepped
in to chec+ it.; 0o non@!alays were governed by their personal laws
or ifthey were 3ritish sub=ects )nglish law. !alay :ulers concluded
treaties in return for 3ritishprotection against e.ternal attac+s
agreed to accept 3ritishadvisers whose advice had to be sought and
acted upon in allmatters e.cept those concerning 1slam and !alay
custom )nglish law was introduced informally through the:esidential
system in two ways 0he enactment of a number of specific
legislation on theadvice of 3ritish administrators. 0he decisions
of the courts established by the 3ritishadministrators. Application
of )nglish law1. 'eneral Appli#ation of &nglish la% Section
> of the Civil Law Act #$'%. 1ntheabsenceof writtenlaw thecourts
in!alaysiashall apply the common law and rules of el ?a(anathan
[!!@# the court held that the3ritish -omestic Ciolence and
!atrimonial Proceedings Act#$D%andthe)nglishauthorities
decidedrelatingtheretomay not be binding in our country.
Case:Push)aha>)M--?ajoov.Malaysian.oAo)erativeBnsuran3e -o3iety
'td & Anor [!!4# the plaintiff sought toinvo+e an )nglish
statutory provision to revo+e
anominationbyherdeceasedhusbandinhislifeinsurancepolicy made before
their marriage. 0he =udge dismissed theapplication on the ground
that Sec > of the CLA allows theapplicationof the common lawof
)nglandandrule of)l -andaraju v. Publi3Prose3utor [!!,# illustrates
the departure ofFederal Court fromits own previous decision.Federal
Court declined to follow its previousdecision in :an Boon &ean
v. Publi3 Prose3utor becausethe Federal Court in that case
misunderstood the ratio inthe Supreme Court decision in &hoo Ci
.hiang. 0he practice of the present Federal Court in civil matters
isthe same as incriminal mattersI while treatingpreviousdecisions
as normally binding the Federal Court will departfrom a previous
decision when it appears right to do so.Court of Appeal Case:
&esultanan Pahang v. -athas2 ?ealty -dn Bhd [!!,#the Court of
Appeal was urged by the cousel to re=ect
thedecisionmadeinthecaseof-yari2at &enderaanMelayu&elantan
-dn Bhd v. :rans)ort For2ers 5nion [!!4#.Abdul !ale+ ECA re=ected
the invitation on the ground interalia that ;we are bound by our
own decisions;/ori8ontal Stare -ecisis: 0he decision of superior
courts especially Federal Court andCourt of Appeal bind their
future decision in respect of caseshaving same material facts and
ratio decidendi. Similarity of material facts: 0he =udge must
ensure that the cases referred and tobe followed contain similar
material facts. ).ample: 1n A&&& A bought a bottle of
ginger beer dran+it and suffered diarrhea and other illness due
tothe presence of decomposed snail in the bottle.0he person
successfully sued the manufacturerfor negligence in the manufacture
of theproduct. -ecided by C(A. 1n a subse