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Introduction to the Concept of Law in Malaysia

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INTRODUCTION TO THE CONCEPT OF LAW IN MALAYSIA 1

Prepared by: Pn. Siti Nurazani Mustaffa Commerce Department Politeknik Mersing Johor KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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COURSE OUTLINE  Concept of law in Malaysia  Concept of Law  Types of Law  The sources of Malaysian Law

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WHAT IS LAW?

Oxford Dictionary: The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition penalties.

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Sir John Salmond (1862-1924): The body of principles recognized and applied by the state in the administration of  justice

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CLASSIFICATION OF LAW

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CLASSIFICATION OF LAW Public law:  The law which governs the relationship between individuals and the state.  Public law may be further subdivided into two categories i.e. constitutional law and criminal law.  Constitutional law lays down the rights of individuals in the state. It deals with questions such as supremacy of Parliament and rights of citizens. It also covers areas dealing with state and federal powers.  Criminal law codifies the various offences committed by individuals against the state. A crime is a wrong against the state for which punishment is inflicted by the state. KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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CLASSIFICATION OF LAW

International law:  The law which governs the relationship between state and state.  It may be subdivided into two categories: Public Internation al Law

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Private International Law

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CLASSIFICATION OF LAW Private law:  Private law concerned with matters that affect the rights and duties of individuals amongst themselves.  Basically, private law is intended to give compensation to person injured, to enable property to be recovered from wrongdoers and to enforce obligations.  Examples : law of tort, contract law, law of succession, employment law, property law, family law, labour law, commercial law, etc.

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SOURCES OF MALAYSIAN LAW

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WRITTEN LAW  Written law is that portion of Malaysian law which is written and is made by Parliament, legislative assembly (Dewan Undangan Negeri) and have in the constitution.  Its found in the federal constitution, state constitution, federal legislation, state legislation and subsidiary legislation.  Malaysian written laws are contained in codes and statutes known as Acts, Ordinances, and Enactments. a) Acts :  Acts are laws enacted by the Parliament.  There are 4 types of Acts: the Principal Act, the Amendment Act, the Revised Act, and the Consolidated Act.

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WRITTEN LAW b) Ordinances  Ordinances are laws enacted by the federal legislature between 1 April 1946 - 10 September 1959.  Laws promulgated by the Yang Di-Pertuan Agong during an emergency proclaimed under Article 150 of the Federal Constitution are also known as ordinances. c) Enactments  Enactments are laws enacted by State Legislative Assemblies. However, the State Legislative Assembly laws in Sarawak are known as ordinances.

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FEDERAL CONSTITUTION  Provides the powers of the Federal & State Governments  Provides fundamental rights of individual  The Federal Constitution is the supreme law of the land. Generally, any law which is inconsistent with the Federal Constitution is invalid.  The Malaysian 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. KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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STATE CONSTITUTION

 The 13 States of Malaysia have individual constitutions which provide for a single chamber Legislative Assembly in each state.  The government is headed by a Menteri Besar or a Chief Minister. (In the Malay States the MB is assisted by a cabinet known as the Executive Council) In Sabah & Sarawak, members of the Executive Council are known as State Ministers.  Regulates State Governments  Contains provisions derived from 8th schedule of the Federal Constitution KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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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.  Examples: Act - Federal Law made by Parliament (laws made after 1957)  Enactment - State Law made by Legislative Assemblies  Ordinance - Law made by YDPA during Proclamation of an emergency when Parliament is not sitting concurrently. KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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SUBSIDIARY LEGISLATION  Laws made under any Acts, Enactments or OrdinancesVery important because specify the laws in more detail and for everyday matters  Also known as delegated legislation. A statute will confer power on an authority for it to enact rules and regulation. Example:  Parent Act (main law) : Hire-Purchase Act 1957  Subsidiary Legislation : Hire-Purchase(Repossession) Regulation  Subsidiary legislation made in contravention of either a parent Act or the Constitution is void

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UNWRITEN LAW  Unwritten law is that portion of Malaysian law which is not written and is not made by Parliament, legislative assembly (Dewan Undangan Negeri )and not in the constitution.  It found in cases decided by the court, local customs, English law and Islamic Law.

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ENGLISH LAW

16  

Used to fill the vacancies available in Malaysian law (only when it necessary). Three sources in English common law: i) common law itself ii) justice decision based on Lord counsellor iii) act  Applicable in the absence of local laws  Suitable to local circumstances

English Commercial Law?



Section 5(2) of the Civil Law Act 1956, English commercial law applies to Penang, Malacca, Sabah & Sarawak



If no local laws applicable



Today, many local laws dealing with commercial matters e.g. Contracts Act 1950, Partnership Act 1961, Companies Act 1965 KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

LOCAL CUSTOMS

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 Customs practiced by local people  Used for cases of marriage and the division of the property and assets upon a person’s death. 

It depends on the varieties of race and decisions made by the heads of people.  For Chinese and Indian, it was modified when the arrival of the English people in a variety of civil law enactment.  Sabah and Sarawak: native customary laws apply 

Peninsular Malaysia:  Adat Perpatih - Malays in NS & Naning in Melaka (land, lineage, election of rulers)  Adat Temenggung - many states KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

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ISLAMIC LAW 

Applies to all persons who are Muslims and is of particular importance in matter relating to family disputes and the issues pertaining to estate matter such as the division of property and assets upon a person’s death. 

family matters (marriage and divorce)



estate matters (inheritance, wasiat)



Depend on Mazhab Shafie.



Leaders to implement Islamic law is sultan / king for their states and for states of Melaka, Penang ,Sabah and Sarawak, leader to implement Islamic law is the general ruler (Yang Dipertuan Agong).

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JUDICIAL DECISION

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 Judicial decisions: Judge’s decision 

The principle of "binding precedent" (‘duluan mengikat’):  Not decide cases arbitrarily -must follow precedents (previous decisions of similar situations).  Each court is bound by the decisions of courts of the same level or higher than it in the same hierarchy of courts, whether or not it believes a decision is correct.

 Judicial decision comes from decision in the Federal Court decision, the High Court and the Privy Council judicial committee.  Without the concept of "binding precedent”, it depends on the discretion of justice.

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JUDICIAL SYSTEM IN MALAYSIA

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Federal Court/Court of Appeal  The supreme court in Malaysia.  These court have jurisdiction to hear appeals from the High Court.  This court can also decide whether federal law or state law is valid or not.  These court also have jurisdiction to hear the resolution of disputes between the central government and state governments.

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High court  This court have jurisdiction to hear civil and criminal cases. 

Civil cases are heard here involving claims exceeding RM280, 000.



This Court will award all kinds of punishment, including capital punishment. other matters, including in the case of bankruptcy, custody, matrimonial property and such.

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Session court 

This court have jurisdiction to hear civil cases where the claim is between RM25, 000 to RM280, 000.

 Imprisonment in civil claims is more than 10 years but not to the death penalty.

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Magistrates’ Court  This court can hear civil cases where the claim does not exceed RM25,000. 

Imprisonment not exceeding 10 years.

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Penghulus’ Court  The court of a penghulu, or Malay village head : the power to hear civil matters of which the claim does not exceed RM50, where the parties are of an Asian race and speak and understand the Malay language.  The Penghulu Court’s criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race which is specially enumerated in his warrant, which can be punished with a fine not exceeding RM50.  In Sabah and Sarawak, there are no Penghulus’ Courts, but there are instead Native Courts having jurisdiction on matters of native law and custom. KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

QUESTIONS 26

1.

The main sources of Malaysian law comprise: statute law, unwritten law and Islamic law (True / False)

2.

The following are written law except: a. Legislation enacted by Parliament and State Assemblies b. Judicial decisions of the superior courts c. Subsidiary legislation d. State Constitutions KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

Cont. 27

3.

Unwritten law also referred to as statute law (True / False)

4.

In Perak, Malacca, Sabah and Sarawak, English commercial law at the date on which the matter has to be decided is applicable in the absence of local legislation (True / False)

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Cont. 28

5.

Judge decides cases arbitrarily without refer to decided cases (True / False)

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The following statements are true except: a. Federal Constitution provides fundamental rights of individual b. Judge must follow precedents (previous decisions of similar situations) c. English law applicable in the absence of local laws even though not suitable with local circumstances d. State Constitutions contains provisions derived from 8 th schedule of the Federal Constitution

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Cont. 29

7.

Subsidiary legislation made in contravention of either a parent Act or the Constitution is voidable (True / False)

8.

Private law is the law which governs the relationship between individuals and state (True / False)



Define the word ‘law’? ___________________________________________ ___________________________________________

10. What is meant by ‘judicial precedent’? ___________________________________________ ___________________________________________ KURSUS PENGURUSAN PERNIAGAAN KV/PMJJUN15

THE END 30

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