Law in Malaysia
Content
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 government 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 freedom of speech. It prevents individuals in powerful position from taking an unfair advantage of other people. Law ensures a safe and peaceful society, in which individual rights are preserved. Certain governments have cruel laws, where police and armies arrests and punishes people without a trial in the court. Law applies to every persons, public authorities, governmental departments, private bodies, 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 executive 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 bodies form the Malaysian government. The law, however, is an independent entity by 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 colonial 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 law, and 3.Muslim law.
6
The laws of Malaysia can be divided into two types of laws— written law and unwritten law. Written laws are laws which have been enacted in the constitution or in legislations. 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 . In situations where there is no law governing a particular circumstance, Malaysian 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 are 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, Legislations, and Subsidiary legislations.
8
Federal Constitution is said to be the highest legal authority of land. The Constitution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The Constitution came into force following the independence on August 31, 1957. It consists of 15 Parts, 183 Articles and 13 Schedules. Article 4(1) state that the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this 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 certain provisions that are to be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the Parliament can enforce those provisions or abolish any provision in the state constitution that contradict with those provisions.
11
Legislations are the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. It mentions the scope of the Parliament and the State Assembly. If the Parliament (or any State Assembly) makes a law which is not in its scope of authority or contradicts with the constitution, the courts can declare that as null and void.
12
Article 74 of Federal Constitution states that parliament may make law with referring to matters provided in the federal list and state legislatives may make law 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, federal list and the concurrent list are contained in the Ninth Schedule of Federal Constitution. 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 emergency, even if there are any contradictions with the Federal Constitutions involved, 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 put to death. He appealed on the ground that there were neither a preliminary enquiry nor a jury adopted by High Court which were required under Criminal Procedure Act and claimed that the procedures set out in Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with Article 8 of Federal Constitution. It was held that Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal Constitution. 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 customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non – statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring to principles of fairness, equality and justness. In these 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 precedents and opinions given on real cases by judges.
15
Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April 1956. Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.
16
But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England. Common law and law of equity in Malaysia should be developed and amended according to the local 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 held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments 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 decide whether to follow English Law (common law and law of equity) or Federal law, considering 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 offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, 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 different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of local race is affected.
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 when first purchaser’s (UMBC Finance Bhd.) indorsement of ownership claim was not included in the registration card of vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were not entitled to the vehicle. 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 require 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 local circumstances has to be distinguished from the English law.
21
Two components of English law are English commercial law and English land law. English 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 Malaysia except Penang and Malacca in absence of local legislations – Section 5(1). This includes laws regarding partnership, banking, principals and agents, life and insurance and so on. There is no entire dependence on English commercial law as only certain principles apply and many local statutes have been inserted to the English 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 – Section 5(2). These states are still dependant 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 the land matters and there is no any allowance for English land law, unless the National 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 to a proprietor with certain conditions and annual rent as consideration. The rent and penalties on arrear payments were not settled. Johor State Authority served a notice to forfeiture the land as the right of consequence of the offence. The appellant, Johor State Authority and the proprietor, appealed and they were granted relief against forfeiture. Collector of Land revenue appealed to federal court and the appellants appealed to Privy Council. It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is cancelled and it was provided by Malaysian National Land Code.
25
Judicial decisions are based on ‘doctrine of binding precedent’. Precedents are the decisions 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 decisions previously. However, the decisions of lower courts are not binding over superior courts. The lower courts must refer to the mandatory precedents of superior courts. However, judge of superior court will distinguish a case before him and the cases laying down the precedents and can decide not to follow the mandatory 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 precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent.
27
Customs are another important source of unwritten law. Customs are inherited from 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 Sabah and Sarawak have their own customary law which relates to the land and family matters. ‘Adat’ applies to malays. There are two types of Adat; Adat Perpatih and Adat Temenggung.
28
Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat Perpatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga 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 patrilineal form of organization. Patrilineal is a system in which one belongs to father's lineage; it generally involves the inheritance of property, names or titles from father to sons.
30
After the establishment of Law Reform (Marriage and Divorce) Act 1976, the family 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 important source of unwritten law in Malaysia.
31
Islamic law, which is only applicable to Muslims, is enacted under the Federal Constitution. The state legislatures have the power and are permitted to make Islamic laws pertaining to persons professing the Islam religion. Such laws are administered by separate court system, Syariah Courts. State legislature also has the jurisdiction over the constitution, organization and procedures of Syariah Courts. 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 common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, the then Chief Justice of Malaysia,Tan Sri Ahmad Fairuz Abdul Halim questioned to need to resort to the English common law despite Malaysia 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 court of appeal in Malaysia. The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts. The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate 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 Federal 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 but its decisions were further appealable to the Privy Council in London. However on January 1, 1978, Privy Council appeals in criminal and constitutional matters were abolished and on January 1, 1985, all other appeals i.e. civil appeals except 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 A885 provides litigants one more opportunity to appeal. Alternatively it can be said 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 Agong ("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 Malaysian 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 Rulers (the Rulers being the monarchical heads of the component states of the Federation of Malaysia) including His Majesty The Yang di-Pertuan Agong shall be heard 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 Court 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 important area in this regard is the immigration law. Other areas of law peculiar to these two states is land law. Generally, land matters and natural resource management is a federal law matter. However, there are special provisions in the Constitution allowing for the states of Sabah and Sarawak to create separate legislations. 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 Ordinance; and in Sarawak, the Sarawak Land Code.
39
The federal government has authority over external affairs, defense, internal security, justice (except civil law cases among Malays or other Muslims and other indigenous peoples, adjudicated under Islamic and traditional law), federal citizenship, finance, commerce, industry, communications, transportation, and other matters.
40
Malaysia has an exemplary record of racial, cultural and religious tolerance. The document of destiny that was adopted as the Constitution bore the mark of idealism 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 Malaya to produce a unique form of government. The Malay-Muslim features of the Constitution are balanced by other provisions suitable for a multi-racial and multi-religious 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 creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia.
45
The highest position in the judiciary of Malaysia is the Chief Justice of the Federal 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 Chief Judge of Sabah and Sarawak. The superior courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the Sessions Courts 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 the Chief Judge of Malaya is Justice Dato' Alauddin Mohamad Sheriff. The current Chief Judge of Sabah and Sarawak is Justice Tan Sri Richard Malanjum (appointed 2006).
47
There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic ( sharia ) law. The Syariah Courts have jurisdiction 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, previously Lord President Tun Mohamed Eusoff Chin 1994 – 2000 Tun Mohamed Dzaiddin Abdullah 2000 – 2003 Tun Ahmad Fairuz Abdul Halim 2003 – 2007 Datuk Abdul Hamid Mohamad 2007 - present
49
The government and law should act in the interest of society and these bodies should not stand distinctively from the society in order to maintain peace and balance of power between people and government.
50
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 government 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 freedom of speech. It prevents individuals in powerful position from taking an unfair advantage of other people. Law ensures a safe and peaceful society, in which individual rights are preserved. Certain governments have cruel laws, where police and armies arrests and punishes people without a trial in the court. Law applies to every persons, public authorities, governmental departments, private bodies, 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 executive 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 bodies form the Malaysian government. The law, however, is an independent entity by 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 colonial 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 law, and 3.Muslim law.
6
The laws of Malaysia can be divided into two types of laws— written law and unwritten law. Written laws are laws which have been enacted in the constitution or in legislations. 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 . In situations where there is no law governing a particular circumstance, Malaysian 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 are 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, Legislations, and Subsidiary legislations.
8
Federal Constitution is said to be the highest legal authority of land. The Constitution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The Constitution came into force following the independence on August 31, 1957. It consists of 15 Parts, 183 Articles and 13 Schedules. Article 4(1) state that the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this 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 certain provisions that are to be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the Parliament can enforce those provisions or abolish any provision in the state constitution that contradict with those provisions.
11
Legislations are the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority from the Federal Constitution. It mentions the scope of the Parliament and the State Assembly. If the Parliament (or any State Assembly) makes a law which is not in its scope of authority or contradicts with the constitution, the courts can declare that as null and void.
12
Article 74 of Federal Constitution states that parliament may make law with referring to matters provided in the federal list and state legislatives may make law 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, federal list and the concurrent list are contained in the Ninth Schedule of Federal Constitution. 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 emergency, even if there are any contradictions with the Federal Constitutions involved, 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 put to death. He appealed on the ground that there were neither a preliminary enquiry nor a jury adopted by High Court which were required under Criminal Procedure Act and claimed that the procedures set out in Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with Article 8 of Federal Constitution. It was held that Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal Constitution. 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 customs. Common Law is a major part of many States, especially Commonwealth countries. It is mainly made up of non – statutory laws, which are the precedents derived from judgments given on real cases by judges. Law of Equity resolves disputes between persons by referring to principles of fairness, equality and justness. In these 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 precedents and opinions given on real cases by judges.
15
Section 3(1)(a) Civil Law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April 1956. Section 3(1)(b) and Section 3(1)(c) of Civil Law Act 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statutes of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly.
16
But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England. Common law and law of equity in Malaysia should be developed and amended according to the local 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 held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments 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 decide whether to follow English Law (common law and law of equity) or Federal law, considering 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 offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, 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 different races, each possessing their own customs, different from English law. The entire importation of English law means that the sovereignty of local race is affected.
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 when first purchaser’s (UMBC Finance Bhd.) indorsement of ownership claim was not included in the registration card of vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming that defendants were not entitled to the vehicle. 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 require 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 local circumstances has to be distinguished from the English law.
21
Two components of English law are English commercial law and English land law. English 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 Malaysia except Penang and Malacca in absence of local legislations – Section 5(1). This includes laws regarding partnership, banking, principals and agents, life and insurance and so on. There is no entire dependence on English commercial law as only certain principles apply and many local statutes have been inserted to the English 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 – Section 5(2). These states are still dependant 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 the land matters and there is no any allowance for English land law, unless the National 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 to a proprietor with certain conditions and annual rent as consideration. The rent and penalties on arrear payments were not settled. Johor State Authority served a notice to forfeiture the land as the right of consequence of the offence. The appellant, Johor State Authority and the proprietor, appealed and they were granted relief against forfeiture. Collector of Land revenue appealed to federal court and the appellants appealed to Privy Council. It was held that English land law concerning the relief against forfeiture is inapplicable in Malaysia. Relief against forfeiture means that order for forfeiture is cancelled and it was provided by Malaysian National Land Code.
25
Judicial decisions are based on ‘doctrine of binding precedent’. Precedents are the decisions 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 decisions previously. However, the decisions of lower courts are not binding over superior courts. The lower courts must refer to the mandatory precedents of superior courts. However, judge of superior court will distinguish a case before him and the cases laying down the precedents and can decide not to follow the mandatory 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 precedent may be binding on lower courts if judges of superior court choose to apply persuasive precedent.
27
Customs are another important source of unwritten law. Customs are inherited from 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 Sabah and Sarawak have their own customary law which relates to the land and family matters. ‘Adat’ applies to malays. There are two types of Adat; Adat Perpatih and Adat Temenggung.
28
Adat Perpatih applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat Perpatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of lembaga 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 patrilineal form of organization. Patrilineal is a system in which one belongs to father's lineage; it generally involves the inheritance of property, names or titles from father to sons.
30
After the establishment of Law Reform (Marriage and Divorce) Act 1976, the family 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 important source of unwritten law in Malaysia.
31
Islamic law, which is only applicable to Muslims, is enacted under the Federal Constitution. The state legislatures have the power and are permitted to make Islamic laws pertaining to persons professing the Islam religion. Such laws are administered by separate court system, Syariah Courts. State legislature also has the jurisdiction over the constitution, organization and procedures of Syariah Courts. 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 common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. In 2007, the then Chief Justice of Malaysia,Tan Sri Ahmad Fairuz Abdul Halim questioned to need to resort to the English common law despite Malaysia 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 court of appeal in Malaysia. The country, although federally constituted, has a single-structured judicial system consisting of two parts - the superior courts and the subordinate courts. The subordinate courts are the Magistrate Courts and the Sessions Courts whilst the superior courts are the two High Courts of co-ordinate 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 Federal 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 but its decisions were further appealable to the Privy Council in London. However on January 1, 1978, Privy Council appeals in criminal and constitutional matters were abolished and on January 1, 1985, all other appeals i.e. civil appeals except 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 A885 provides litigants one more opportunity to appeal. Alternatively it can be said 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 Agong ("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 Malaysian 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 Rulers (the Rulers being the monarchical heads of the component states of the Federation of Malaysia) including His Majesty The Yang di-Pertuan Agong shall be heard 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 Court 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 important area in this regard is the immigration law. Other areas of law peculiar to these two states is land law. Generally, land matters and natural resource management is a federal law matter. However, there are special provisions in the Constitution allowing for the states of Sabah and Sarawak to create separate legislations. 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 Ordinance; and in Sarawak, the Sarawak Land Code.
39
The federal government has authority over external affairs, defense, internal security, justice (except civil law cases among Malays or other Muslims and other indigenous peoples, adjudicated under Islamic and traditional law), federal citizenship, finance, commerce, industry, communications, transportation, and other matters.
40
Malaysia has an exemplary record of racial, cultural and religious tolerance. The document of destiny that was adopted as the Constitution bore the mark of idealism 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 Malaya to produce a unique form of government. The Malay-Muslim features of the Constitution are balanced by other provisions suitable for a multi-racial and multi-religious 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 creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia.
45
The highest position in the judiciary of Malaysia is the Chief Justice of the Federal 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 Chief Judge of Sabah and Sarawak. The superior courts are the High Court, Court of Appeal, and the Federal Court, while the Magistrates' Courts and the Sessions Courts 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 the Chief Judge of Malaya is Justice Dato' Alauddin Mohamad Sheriff. The current Chief Judge of Sabah and Sarawak is Justice Tan Sri Richard Malanjum (appointed 2006).
47
There is a parallel system of state Syariah Courts which has limited jurisdiction over matters of state Islamic ( sharia ) law. The Syariah Courts have jurisdiction 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, previously Lord President Tun Mohamed Eusoff Chin 1994 – 2000 Tun Mohamed Dzaiddin Abdullah 2000 – 2003 Tun Ahmad Fairuz Abdul Halim 2003 – 2007 Datuk Abdul Hamid Mohamad 2007 - present
49
The government and law should act in the interest of society and these bodies should not stand distinctively from the society in order to maintain peace and balance of power between people and government.
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