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Malaysian Legal System - Coggle Diagram
Malaysian Legal System
Classification of law
Public Law
governs the r/s between State and Individual
Constitutional Law
lays down the rights of individual in the country/state
Criminal Law
provides offences comitted by individuals against the state
Private Law
governs the r/s between individual and individual
eg: law of contracts, torts, marriage, inheritance, custody, trust
Malaysian Courts' Structure
Superior Courts
Federal Court
Court of Appeal
Higher Court
Subordinate Courts
Session Court
First Magistrate Court
Second Magistrate Court
Court for Children
Native Court
Sources of Malaysian Law
Written Law
1) The Federal Constitution
statue called
Act
, Articles
is the supreme law in the country
cannot be altered or amended except with agreement of
2/3
majority of the total no of members of the Parliament
The Articles
The name, States and territories of the Federation
Religion of the Federation
Supreme Law of the Federation
Fundamental Liberties
Citizenship
Financial provisions
Elections
The Judiciary
Public services
Special powers against subversion, emergency powers
Fundamental Liberties/Human rights
No person may be deprived of his life or personal liberty except in accordance with the law.
No person may be subjected to slavery or forced labor.
No person can be punished under a law which was not in forced when the alleged crime was committed.
A person cannot be tried more than once for the same crime where he has already been acquitted or convicted earlier.
All persons are equal before the law and entitled to its protection.
No citizen may be banished from the country.
Every citizen has the right to freedom of speech, peaceful assembly and association.
Freedom of religion.
Citizens cannot be discriminated against anything in relation to providing education, appointment to any office or employment under public authority or in relation to acquisition of property, establishing or carrying on of any religion, race, descent or place of birth.
Article 149
Parliament to make laws against the subversion, whether or not emergency is proclaimed
Article 150
The Yang di-Pertuan Agong to proclaim an emergency if he is satisfied that there is an imminent danger of the occurence of such events.
Article 153
Bumiputera/Malays are subject for special priviledges.
3) Legislation
Laws enacted/made by the legislature/
legislature body
Legislature : Parliament (federal level),
State Legislative Assembly (state level)
Terminology:
Act
; by Parliament
Ordinance
; by Sarawak Legislative Assembly
Enactment
; by all of State Legislative Assembly (except Sarawak)
Rule and regulatory orders ; by subsidiary legislation
Parliament
can enact laws on matters provided in
'Federal List - List I of the Ninth Schedule'
:
External affairs / foreign affairs
Defences of Federation
Internal security
Civil and criminal law and procedure and admin' of justice
Finance
Trade. commerce and industry
Shipping, navigation, and fisheries
Education
Medicine and health
Both
Parliament and State
can enact laws in
'Concurrent List - List III of the Ninth Schedule
:
scholarship protection of young children and women
drainage and irrigation
culture and sport
public health
prevention of diseases
State
can enact laws on matters provided in
'State List - List II of the Ninth Schedule'
:
Islamic matters
Land matters
Agriculture and forest
Local government
Boarding or lodging houses, burial and cremation ground,
market and licensing of theatres and public amusement
State workers and water
State government machinery
State holidays
Native law and custom
Port and harbour
2) State Constitution
Contains provisions concerning:
Ruler
Executive Council
Legislative assembly (ADUN)
Financial provisions
State employees
Amendment to the State Constitution
matters as provided under Federal constitution
4) Subsidiary legislation
Definitions:
''any proclamation, rule, regulation, order, notification, by law or other instrument made under any Act, Ordinance, Enactment or other lawful authority and having legislative effect.''
Person or body empowered to make subsidiary legislation:
Ministers
Attorney General Department
Local Authorities
Police Department
Disadvantages
Proliferation (too much) of subsidiary legislation
Cannot actively supervise (too many laws and legislatures, lack of time)
The growth of subs. leg. goes against the doctrine of separation tof powers.
Advantages
Subs. Leg. can be passed very speedily (doesn't require many procedures)
Deal with detailed rules necessary to implement law.
Uses the special skill and knowledge of experts. (better relevance)
Control over subsidiary legislation
Consultation
Parliamentary control
Judicial review
Publicity; must be published in the Gazette
Unwritten Law
law made by person or body not authorized to make law
1) English law (common law)
English Civil Laws (S.3(1) of Civil Law Act)
Common law and rules of equity involving private laws.
Cut off dates (on and before):
West Malaysia : 7 April 1956
Sabah : 1 December 1951
Sarawak : 12 December 1949
Conditions:
There is no local statues on the matter in dispute.
Suitable to the local circumstances.
English Commercial and Merchantile Law
(S.5(1) of Civil Law Act)
Cut off dates (on and before):
West Malaysia (except Penang & Malacca) : 7 April 1956
Penang, Malacca, Sabah & Sarawak : no cut off dates (at the time issue arises)
.
2) Judicial precedent
Decisions of the superior courts which binds the lower courts in the same hierarchy.
The decisions will have a binding effect on future cases.
Binding rules
Ratio decidendi
The principle/ruling and reason behind the decision.
Non-binding rules
Per incuriam
Any decision made in ignorant of statue or binding precedent.
*Obiter dictum
Anything else said by the Judges in reaching the decisions (thing said by the way).
Does not form the matters at issue.
Advantages
Consistency
Clarity
Flexibility
Detail
Disadvantages
Law is complicated
Difficult to identify the ratio decidendi
Unfair result
3) Custom
Custom of local inhabitants that has been accepted as law.
Mainly relates to family matters; marriage, divorce and inheritance.
4) Islamic Law
Only applicable to Muslims.
Administered in Syariah Courts
Statutory Interpretation
Statutory rules
The interpretation Acts
assists the courts to interpret written laws by providing the definitions for commonly used words and terms, and its general directions.
eg; singular word read as plural
applies to:
Federal and States' Constitutions
all Acts of Parliament, Enactments and Ordinances
all subsidiary legislation
Common law rules of interpretation
Mischief Rule
The oldest rule.
To discover the status of law prior to the legislation and to compare with objective of the new law.
Permits the court to go behind the actual wording of a statute in order to consider the problem that the statute is supposed to remedy.
What was the status of law before making of the Act?
What was the defect before the Act was made?
What remedy new Act provide for the defect?
What did the Legislation intended to prevent in making such Act?
Literal rule
Rule which a word or phrase is given in its literal or ordinary grammatical meaning.
For precise and unambiguous words.
Golden Rule
A modification of the literal rule
Contemplates the actual modification of the language to overcome the defects of the Act.
Purposive approach
The words of the statue are interpreted not only in their ordinary, literal and grammatical sense, but also with reference to the purpose of the legislation.
What is the legislature trying to achieve?
Malaysian Judges prefer this approach.
Contextual approach
Unified Approach/ Purposive and Literal construction
Means that a word should be constructed in its context; look at the statue as whole to discover the meaning of a word in it.
Include group of interpretation techniques where the interpreter will evaluate the probable meaning so as to reach the most sensible and consistent or satisfactory meaning in its context.
Common law rules of language/
presumptions
Ejusdem Generis
General words following specific words, the general words will refer to the genus/same class as the specific words.
<specific words>,<general>, etc ..
eg : <beer,brandy,whisky>, <other intoxidants>.. other intoxidants refer to types of intoxicating drinks NOT ALL type of intoxidants
Expressio unius est
exclusio alterius
To express one thing by implication to exclude anything else
eg: ''land and coalmines'' clearly exclude other types of mines
Noscitur a socis
Presumed that the words draw meaning from the words around it.
eg: ''children's books, children's toys and clothes'' clothes will also be presumed to be children's
In pari materia
means 'read together' or 'read with respect of another'.
Statues enacted at different times but related to the same subject/object, will be interpreted similarly as they have a common purpose for comparable events or items.
The preambles of every Act/ Enactment/ Ordinance/ subsidiary legislation
Dictionaries and other literary
sources including text books