6281204 Law in Malaysia

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Law in Malaysia Prepared by :Musbri Mohamed DIL; ADIL ( ITM ) Pursuing MBL ( UKM ) 1

What are Your Rights ? People have to know their scope of rights and freedom granted to them by governm ent and must be able to demand for their rights whenever injustice takes place. 2

Law protects basic individual rights and freedom such as liberty, equality and f reedom of speech. It prevents individuals in powerful position from taking an un fair advantage of other people. Law ensures a safe and peaceful society, in whic h individual rights are preserved. Certain governments have cruel laws, where po lice and armies arrests and punishes people without a trial in the court. Law ap plies to every persons, public authorities, governmental departments, private bo dies, profit making organizations as well as non-governmental organizations. 3

In Malaysia, the legislative body which is made up of Lower House and the Upper house, both which consists of representatives of people, makes law. The executiv e body which is headed by YDPA, who is assisted by Prime Minister, enforces the law, so that everyone will follow. The judiciary body judges law. These three bo dies form the Malaysian government. The law, however, is an independent entity b y itself although it is made, enforced and judged by the government. 4

Malaysian sources of law comprises laws that have emerged from three significant periods. The Malaysian history originating from :1.Malacca Sultanate to spread of Islamic religion to Malacca 2. South East Malaysia 3. And finally the colonia l rule of British over the Malayan land which led to the sources of Malaysian as can be seen today. 5

The source of Malaysian law can be classified into :1.Written law, 2.Unwritten l aw, and 3.Muslim law. 6

The laws of Malaysia can be divided into two types of lawsâ written law and unwritte n law. Written laws are laws which have been enacted in the constitution or in l egislations. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law or case law . I n situations where there is no law governing a particular circumstance, Malaysia n case law may apply. If there is no Malaysian case law, English case law can be applied. There are instances where Australian, Indian, and Singaporean cases ar e used as persuasive authorities. 7

Written law is the law written and gazetted to be followed by the individuals of a State. It is made up of :Federal constitution, State constitutions, Legislati ons, and Subsidiary legislations. 8

Federal Constitution is said to be the highest legal authority of land. The Cons titution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The Constitution came into force followi ng the independence on August 31, 1957. It consists of 15 Parts, 183 Articles an d 13 Schedules. Article 4(1) state that the constitution is the supreme law of t he federation and any law passed after Merdeka Day which is inconsistent with th is constitution shall, to the maximum extent of inconsistency, be void. 9

Article 159 and 161E provides provisions to allow the constitution to be amended with the condition of 2/3rds majority in both houses of Parliament agreeing to the amendment. 10

State Constitution is the same as Federal Constitution, except it is set by the states in Malaysia. The 8th schedule of the Federal Constitution mentions certai n provisions that are to be included in the State Constitutions such as state ex ecutive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitution s must contain their provisions, otherwise the Parliament can enforce those prov isions or abolish any provision in the state constitution that contradict with t hose provisions. 11

Legislations are the laws that are established by the Parliaments at federal lev el and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. It mentions the sc ope of the Parliament and the State Assembly. If the Parliament (or any State As sembly) makes a law which is not in its scope of authority or contradicts with t he constitution, the courts can declare that as null and void. 12

Article 74 of Federal Constitution states that parliament may make law with refe rring to matters provided in the federal list and state legislatives may make la w with referring to matter provided in the state list. Concurrent list is in the scope of enactment by both parliament and state legislatives. State list, feder al list and the concurrent list are contained in the Ninth Schedule of Federal C onstitution. If there are any contradictions between federal and state laws, the federal law shall prevail and state law is void to the scope of inconsistency. This was provided by Article 75 of Federal Constitution. 13

Parliament may pass the power to legislate any subsidiary legislation during eme rgency, even if there are any contradictions with the Federal Constitutions invo lved, due to some exception in Article 150 of Federal Constitution. The related case is Eng Keock Cheng v. Public Prosecutor. In this case, Eng Keock Cheng who was convicted committed 2 offences during emergency period and was ordered to pu t to death. He appealed on the ground that there were neither a preliminary enqu iry nor a jury adopted by High Court which were required under Criminal Procedur e Act and claimed that the procedures set out in Emergency (Criminal Trial) Regu lations 1964 was invalid as it contradicts with Article 8 of Federal Constitutio n. It was held that Parliament may pass the power to legislate any subsidiary le gislation during emergency, even if there are any contradictions with the Federa l Constitutions involved, due to some exception in Article 150 of Federal Consti tution. The appeal was dismissed. 14

Unwritten laws are laws that are not enacted and not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and cust oms. Common Law is a major part of many States, especially Commonwealth countrie s. It is mainly made up of non â statutory laws, which are the precedents derived fr om judgments given on real cases by judges. Law of Equity resolves disputes betw een persons by referring to principles of fairness, equality and justness. In th ese cases, nothing was done against the law by the parties to dispute, but their rights are in conflict. Thus, it is different from law; both the Statutory Law enacted by Parliament and State Legislatives and Common Law which consists of pr ecedents and opinions given on real cases by judges. 15

Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia sho uld apply Common Law and the Law of Equity as administered in England on 7th Apr il 1956. Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that c ourts in Sabah and Sarawak should apply common law and law of equity together wi th the statutes of general application as administered in England on 1st Decembe r 1951 and 12th December 1949 accordingly. 16

But it is not stated that the Common Law and Law of Equity in Malaysia should re main unmodified and follow the same law as administered in England. Common law a nd law of equity in Malaysia should be developed and amended according to the lo cal needs. In addition, these two laws should also take into account of changes in these laws in England. However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. 17

In the case Commonwealth of Australia v. Midford (Malaysia) Sdn. Bhd., it was he ld that the doctrine of sovereign or crown immunity which was developed in Engli sh Common Law after 1956 should apply in Malaysia. It was said that any developm ents in English Common Law after 1956 should apply in Malaysia. 18

In the case Smith Kline & French Laboratories Ltd. v. Salim (Malaysia) Sdn. Bhd. , It was held that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia. In the case Jamil bin Harun v . Yang Kamsiah & Another, It was decided that courts have the authority to decid e whether to follow English Law (common law and law of equity) or Federal law, c onsidering the circumstances and the scope the written law permits to do so. In the case Karpal Singh v. Public Prosecutor, It was held that the criminal offenc es in Malaysia were provided by Criminal Procedure Code of Malaysia and therefor e, there is no allowance for English law to apply. There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia. 19

Common law can apply in the absence of local legislation. Local law is regarded highly that the English law. The English law is only meant to fill in the lacuna , in which the local legislation is not present. Only the relevant part which is suited to the local needs and circumstances applies. Malaysia is made up of dif ferent races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of local race is a ffected. 20

The case law related to the boundaries of application is,Syarikat Batu Sinar Sdn . Bhd. v. UMBC Finance Bhd. In this case, problem of double financing occurred w hen first purchaserâ s (UMBC Finance Bhd.) indorsement of ownership claim was not inc luded in the registration card of vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were not entitled to the vehic le. It was held that the English law requires the indorsement of ownership claim in registration card, but the law in Peninsular Malaysia does not really requir e the indorsement to be attached with the registration card of vehicle. The law regarding the indorsement of ownership claims in Malaysia which applies to the l ocal circumstances has to be distinguished from the English law. 21

Two components of English law are English commercial law and English land law. E nglish Commercial Law is provided by the section 5(1) and section 5(2) of Civil Law Act 1956. The principles of English commercial law apply in Peninsular Malay sia except Penang and Malacca in absence of local legislations â Section 5(1). This includes laws regarding partnership, banking, principals and agents, life and in surance and so on. There is no entire dependence on English commercial law as on ly certain principles apply and many local statutes have been inserted to the En glish Commercial Law. 22

English Commercial Law applies in Penang, Malacca, Sabah and Sarawak as the law administered in these states will be the same as law administered in England, in the like case at corresponding period â Section 5(2). These states are still depend ant on the English Commercial Law. In the case Koon Thean Soong v. Tan Eng Nam, it was held that English law of partnership was inapplicable as there is a local statute governing the partnership in Malaysia, which is Contract (Malay State) Ordinance. 23

As for the English Land Law, none of the English Land Law concerning the tenure, conveyance, assurance of or succession to any estate, right or interest therein applies in Malaysia. In Malaysia, National Land Code is the law that governs th e land matters and there is no any allowance for English land law, unless the Na tional land code applies it for the judicial comity. 24

The case related is United Malayan Banking Coperation Bhd & Another v. Pemungut Hasil Tanah, Kota Tinggi. In this case, Johor State Authority transferred land t o a proprietor with certain conditions and annual rent as consideration. The ren t and penalties on arrear payments were not settled. Johor State Authority serve d a notice to forfeiture the land as the right of consequence of the offence. Th e appellant, Johor State Authority and the proprietor, appealed and they were gr anted relief against forfeiture. Collector of Land revenue appealed to federal c ourt and the appellants appealed to Privy Council. It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Relie f against forfeiture means that order for forfeiture is cancelled and it was pro vided by Malaysian National Land Code. 25

Judicial decisions are based on â doctrine of binding precedentâ . Precedents are the dec sions made by judges previously in similar circumstances. There are two types of precedents. Mandatory precedent is applied when the decisions of superior court are binding on lower courts or the superior courts are bound by their own decis ions previously. However, the decisions of lower courts are not binding over sup erior courts. The lower courts must refer to the mandatory precedents of superio r courts. However, judge of superior court will distinguish a case before him an d the cases laying down the precedents and can decide not to follow the mandator y precedent if he thinks that the mandatory precedent is not related to the case before him. From this, an original precedent is formed. 26

Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent. Persuasive preceden t may be binding on lower courts if judges of superior court choose to apply per suasive precedent. 27

Customs are another important source of unwritten law. Customs are inherited fro m one generation to another generation. Every race has its own customs. Chinese and Hindus customs are governed by Chinese and Hindu Customary Law. Natives in S abah and Sarawak have their own customary law which relates to the land and fami ly matters. â Adatâ applies to malays. There are two types of Adat; Adat Perpatih and Ad t Temenggung. 28

Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique chara cteristic of Adat Perpatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of le mbaga and YDP. Matrilineal is a system in which one belongs to mother's lineage; it generally involves the inheritance of property, names or titles from mother to daughters. 29

Adat Temenggung applies in other states. It is based on the characteristic of pa trilineal form of organization. Patrilineal is a system in which one belongs to father's lineage; it generally involves the inheritance of property, names or ti tles from father to sons. 30

After the establishment of Law Reform (Marriage and Divorce) Act 1976, the famil y law has been given enforcement on matters of marriage, divorce and inheritance . As a result, the Chinese and Hindu Customary Laws have lost its effect as an i mportant source of unwritten law in Malaysia. 31

Islamic law, which is only applicable to Muslims, is enacted under the Federal C onstitution. The state legislatures have the power and are permitted to make Isl amic laws pertaining to persons professing the Islam religion. Such laws are adm inistered by separate court system, Syariah Courts. State legislature also has t he jurisdiction over the constitution, organization and procedures of Syariah Co urts. Now, Islamic laws are increasingly applied in banking and land laws other than applied to family matters and estate matters. The YDPA is the head of Islam in his home state, Penang, Malacca, Sabah, Sarawak and Federal Territories. The head of Islam of other States is Sultan. 32

Sections 3 and 5 of the Civil Law Act allows for the application of English comm on law, equity rules, and statutes in Malaysian civil cases where no specific la ws have been made. In 2007, the then Chief Justice of Malaysia,Tan Sri Ahmad Fai ruz Abdul Halim questioned to need to resort to the English common law despite M alaysia having already been independent for 50 years and proposed to replace it with Islamic law jurisprudence or sharia law. 33

The Federal Court of Malaysia is the highest judicial authority and the final co urt of appeal in Malaysia. The country, although federally constituted, has a si ngle-structured judicial system consisting of two parts - the superior courts an d the subordinate courts. The subordinate courts are the Magistrate Courts and t he Sessions Courts whilst the superior courts are the two High Courts of co-ordi nate jurisdiction and status, one for Peninsular Malaysia and the other for the States of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Fede ral Court, earlier known as the Supreme Court and renamed the Federal Court vide Act A885 effective from June 24, 1994, stands at the apex of this pyramid. 34

Before January 1, 1985, the Federal Court was the highest court in the country b ut its decisions were further appealable to the Privy Council in London. However on January 1, 1978, Privy Council appeals in criminal and constitutional matter s were abolished and on January 1, 1985, all other appeals i.e. civil appeals ex cept those filed before that date were abolished. The setting up of the Court of Appeal on June 24, 1994 after the Federal Constitution was amended vide Act A88 5 provides litigants one more opportunity to appeal. Alternatively it can be sai d that the right of appeal to the Privy Council is restored, albeit in the form of the Federal Court. 35

Malaysia is a constitutional monarchy, nominally headed by the Yang di-Pertuan A gong ("paramount ruler"), customarily referred to as the king. Kings are elected for 5-year terms from among the nine sultans of the peninsular Malaysian states . The king also is the leader of the Islamic faith in Malaysia. 36

Executive power is vested in the cabinet led by the Prime Minister; the Malaysia n constitution stipulates that the prime minister must be a member of the lower house of parliament who, in the opinion of the Yang di-Pertuan Agong, commands a majority in parliament. The cabinet is chosen from among members of both houses of parliament and is responsible to that body. 37

The Special Court was established on March 30, 1993 vide Act A848, now provided for in Article 182 of the Federal Constitution. All offences committed by the Ru lers (the Rulers being the monarchical heads of the component states of the Fede ration of Malaysia) including His Majesty The Yang di-Pertuan Agong shall be hea rd by the Special Court. The Special Court shall also hear all civil cases by or against them. This Court shall be chaired by the Chief Justice of the Federal C ourt and he shall be assisted by four other members, namely the two Chief Judges of the respective High Courts and two other persons appointed by the Conference of Rulers who hold or have held office as a judge. 38

The states of Sabah and Sarawak joined Malaya and Singapore to form Malaysia in 1963, and there are special laws applicable only to these two states. An importa nt area in this regard is the immigration law. Other areas of law peculiar to th ese two states is land law. Generally, land matters and natural resource managem ent is a federal law matter. However, there are special provisions in the Consti tution allowing for the states of Sabah and Sarawak to create separate legislati ons. For example, in the Peninsular, the National Land Code governs most of the laws relating to land. In Sabah, the main legislation is the Sabah Land Ordinanc e; and in Sarawak, the Sarawak Land Code. 39

The federal government has authority over external affairs, defense, internal se curity, justice (except civil law cases among Malays or other Muslims and other indigenous peoples, adjudicated under Islamic and traditional law), federal citi zenship, finance, commerce, industry, communications, transportation, and other matters. 40

Malaysia has an exemplary record of racial, cultural and religious tolerance. Th e document of destiny that was adopted as the Constitution bore the mark of idea lism as well as realism. It blended the old and the new, the indigenous and the imported. 41

The ideas of Westminster and the experience of India mingled with those of Malay a to produce a unique form of government. The Malay-Muslim features of the Const itution are balanced by other provisions suitable for a multi-racial and multi-r eligious society. 42

Malay privileges are offset by safeguards for the interest of other communities. The spirit that animates the Constitution is one of moderation, compassion and compromise. 43

Courts of Malaysia There are generally two types of trials, criminal and civil. The hierarchy of courts begins from the Magistrates' Court, Sessions Court, High Court, Court of Appeal, and finally, the Federal Court. 44

The jurisdiction of the courts in civil or criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the Constitution provides for two High Courts of coordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this create s two separate local jurisdiction of the courts â for Peninsular Malaysia and for Ea st Malaysia. 45

The highest position in the judiciary of Malaysia is the Chief Justice of the Fe deral Court of Malaysia (also known as the Chief Justice of Malaysia), followed by the President of the Court of Appeal, the Chief Judge of Malaya, and the Chie f Judge of Sabah and Sarawak. The superior courts are the High Court, Court of A ppeal, and the Federal Court, while the Magistrates' Courts and the Sessions Cou rts are classified as subordinate courts. 46

The current President of the Federal Court is Justice Dato' Abdul Hamid Mohamad, the President of the Court of Appeal is Tan Sri Dato' Zaki bin Tun Azmi, and th e Chief Judge of Malaya is Justice Dato' Alauddin Mohamad Sheriff. The current C hief Judge of Sabah and Sarawak is Justice Tan Sri Richard Malanjum (appointed 2 006). 47

There is a parallel system of state Syariah Courts which has limited jurisdictio n over matters of state Islamic ( sharia ) law. The Syariah Courts have jurisdic tion only over matters involving Muslims, and can generally only pass sentences of not more than three years imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane. 48

List of Chief Justices of the Federal Court Tun Abdul Hamid Omar 1994, previousl y Lord President Tun Mohamed Eusoff Chin 1994 â 2000 Tun Mohamed Dzaiddin Abdullah 2 000 â 2003 Tun Ahmad Fairuz Abdul Halim 2003 â 2007 Datuk Abdul Hamid Mohamad 2007 - pr sent 49

The government and law should act in the interest of society and these bodies sh ould not stand distinctively from the society in order to maintain peace and bal ance of power between people and government. 50

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