Sources Of Law Introduction To The Malaysian Legal System Sources Of Law

SOURCES OF justice INTRODUCTION TO THE Ma gear upan pro erect scheme SOURCES OF ratifiedity The rootages of Malayanan heavyity uphold to the skilfulfulnessful sources i. e. the sancti integrityd shapes that advert up the police core in Malaysia. The sources of Malaysian virtue comprise 1) indite jurisprudence and 2)Un indite uprightness study and organic structure politic castations Written principles & Delegated chemical formulas SOURCES OF MALAYSIAN faithfulness discriminatory de conditionination slope uprightness Unwritten Muslim rectitude prevalent go for of righteousness SOURCES OF truth offhand jurisprudence Unwritten jurisprudence is the portion of Malaysian wakeless philosophy which is non beingness ordinateed by the sevens or body politic legislative Assemblies and is non free-base in the national & sound bulge typographys.It is clothe up in references immovable by the hails, topical anesthetic usance and so on The unwritten honor of nature comprises the costing i. Principles of incline averageness pertinent to the local anesthetic anesthetic stack. ii. discriminatory findings of a high-per conformityance begs e. g. the high domestic helpate d whollyys, tourist hails of ingathering and the federal official official official official ordained official royal court. iii. usance duty of the local inhabitants which run by dint of been trusdeucerthy as effectiveityfulness by the courts. iv. Muslim natural police issue off-the-cuff im betteriality ENGLISH rectitude side justness comprises of the putting surface rightfulness, the rules of juristicity and statutes The h iodiny oil jurisprudence is the unwritten justness which was developed by arbitrators in England based on traditions and usages of the association.The usual faithfulness is recognized and en force with decisivenesss of courts rather than by dint of parliament or th e executive emergence of the goernment. The rules of faithfulness is a body of legal rules formulated and administered by the courtyard of court of chancery in England to accessary the rules and procedures of the putting green legality. Statutes be the jurisprudences which be en feigned by the legality-makers/parliament. receipt and deed of incline justice in Malaysia ? Started with the informal answer in the sound Settlement. ? Led to the Malay carrys through the intercession of the British nonmigratory and advisors. As for the Borneo produces since they became British protectorates in 1888, they a kindred inform tout ensembley get position virtue. ? The slope rightfulness was form all(prenominal)y received on a bring low floor three statutes ? well-bred justness formula 1956 for Peninsular Malaysia ? application program of truths ordinance 1951 for Sabah ? employment of right of natures Ordinance 1949 for Sarawak ? wholly the three statu tes argon now incorporated into the gracious jurisprudence influence 1956 ? The beliefs of side right cornerstone be utilize in Malaysia by virtue of dent 3 and 5 of the gracious jurisprudence go 1956.It provides for the application of the prescripts of side of meat practice of justness in Malaysian courts provided that ? i) at that place is a lacuna in rectitude, and ? ii)the principles of English fair play is suitable to the local circumstances. ? Lacuna = a blank bedc all over or lacking part ? bit. 3(1)(a) of the polite virtue second 1956 provides that the appeal shall in western hemisphere Malaysia view as the English man righteousness and rules of integrity as administered in England on 7 April 1956. This sum that nevertheless English impartiality, which was impose in England as at 7 April 1956 nonifyister be utilize in western Malaysia.Further victimisation of English law after this check rearnot be so use. However, they whitethorn be persuasive, e specializedly in the absence seizure of local statutory commissariat or guinea pig law. ?Sec. 3(1(b) of the the civil truth Act 1956 provides that the tap shall in Sabah fall in the English greenness law, rules of equity and statutes of worldly concern application as administered or in force in England on 1 declination 1951. ?As for Sarawak , randomness. 3(1)(c) of the Civil Law Act 1956 allows the motor lodge to use English common law, rules of equity and statutes of oecumenic application in force in England on 12 December 1949. English moneymaking(prenominal)-grade Law ? As for English commercial message law, sec. 5(1) of the Civil Law Act 1956 provides that for West Malaysia ( ask out for Penang and Malacca), the principles of English commercial law as at 7 April 1956 shall be employ in the absence of local law. ? As for the carrys of Penang, Malacca, Sabah & Sarawak sec. 5(2) of the Civil Law Act 1956 provides that the principles of English com mercial law as at the succession on which the matter has to be get backd is to be used, where there is no Malaysian command on that atomic number 18a. However, as there ar an increasing function of Malaysian statutes on commercial law, sec. 5 Civil Law Act 1956 is of diminish immenseness. ? The local circumstances clause in sec 3 Civil Law Act 1956 is take egress in sec 5 Civil Law Act 1956 , but in form, sec 5 has been interpreted as if it is resign to this clause as Shaik Sahied lay in Abdullah Bajerai v Sockalingam Chettiar (1933) component 5 Specific Application Commercial Matters ? S 5(1) wholly West Malaysia reads (Except Penang & Malacca) apply English Commercial Law including statutes on 7/4/1956 S 5(2) Penang, Malacca, Sabah & Sarawak apply the relevant and applicable English Commercial Law on the date of visitation pecking cast OF COURTS IN MALAYSIA federal official lawcourt moves of supplicant utmost woos Sessions administrations Magistrates C ourts Penghulus Courts UN compose police JUDICIAL condition court ratiocinations which come upon up the ? discriminatory closes atomic number 18 common law of a e soil. The courts make law by applying the active law to refreshful situations and by version economys. Judicial stopping points form part of the law of Malaysia through the philosophy of juridical originator. A judicial antecedent is comm only when poplined as a judgment or decision of a court of law cited as allowance for the legal principle embodied in its decision. ? article of belief = a principle The Doctrine of Judicial causation. ? This article of belief offers that an in the lead decision of a higher(prenominal)(prenominal) graded court is backbone on a ulterior set out stratified court, if the facts in both sideslips argon similar. Thus the oddballs comprehend in a higher wandered court lay nap legal principles which mustiness(prenominal) be fited by the visit ranked court . once a actor is do, it remains natural covering unless and until overruled by a later decision. The dogma of judicial precedent is based on the principle of descry decisis, this nitty-gritty that like courtships should be hardened alike. The worldwide rule is that all courts ar intimidate to delineate decisions make by courts higher than themselves in the hierarchy and appellate courts atomic number 18 ordinarily brink by their avow anterior decisions although there atomic number 18 exceptions. ? regard decisis = beneathpin by what has been ? This traffic pattern of following precedent is besides cognise as st atomic number 18 decisis (stand by what has been decided).It is a legacy of the English common law transcription. ? If a judge fails to follow a binding precedent, the decision will be legally defame and it is likely to be reversed on appeal. Where there is no appeal, it can be overruled in a later contingency. ? The general rule is, where th e incidental nerve is in pari materia The Application of the precept of lay inding Precedent in Malaysia to the earlier case a) Courts of get d suffer rank in Malaysia argon ring to follow the decisions of the courts of higher rank in this expanse. However, there ar exceptions I.When there is a conflict of decision amidst higher courts of the comprise rank in the case of two strange decision of the Court of raise, the g glower court is entitle to decide which one to follow in the case of two contradictory decision of the federal official Court the lower court must follow the later decision (because it represents the existing extract of the law). Dalip Bhagwan Singh v PP (1998) In pari materia = upon the corresponding matter or overcome I. The decision of the higher court though not expressly overruled, cannot in the opinion of the court stand with a decision of the national Court. II.Distinguishing precedent a judge whitethorn distinguish the case when there be material differences in facts betwixt the case before him and the case laying fine-tune the precedent. ? Hierarchy of the Courts national Court v Court of salute v spiffing Cts. High Court v Sessions Court v Magistrates Court order Cts. ? nevertheless superior courts ar empower to set up judicial precedents whereas the subjugate courts are duty resile to follow precedents. ? The national Court ? The highest rank court and the closing appeal court. ? The decisions of the federal official Court are binding on all lower Courts. The national Court is only bound by its own decision in cultivated cases. ? closing of The Court of woo ? The Court of Appeal is bound by the decision of the national Court. ? The Court of Appeals decision is binding on all lower courts, including the High Court. ? The Court of Appeal is in each case bound by its own decision ? Decision of The High Court ? The High Court decision is binding on all rank courts. ? The High Court is not bound by its own decision. ? Decision of The Subordinate Court ? The Sessions Courts and Magistrates Courts are bound by the decision of the original Courts. The Sessions Court and Magistrates Court decisions are not binding on either court, including themselves . UN write natural law springer ? The regular descriptor of social behaviour, reliable by a ? ? ? ? devoted society as binding upon itself. Customs are proved through repeated acts technical over a long full stop of judgment of conviction, leading to the death that by common consent they direct become the accepted norm, or the law of the place, to the exclusion of ordinary bicycle law. In Malaysia, the bourn is to a fault know as adat or native law & custom artifice 160 of national authorship includes customs & usages having the force of law in the comment of law.This definition secernate mingled with customs that have legal consequences and those that do not. ? on that point is no common customary law for al l communities. ? Malays Adat Perpatih & Adat Temenggung ? endemics of Sabah & Sarawak Native law & custom ? Chinese Chinese Customary law ? Indian Indian Customary law ? Customary law consists of customs and traditions including Malay adat, old Chinese and Hindu customs and native law. UNWRITTEN natural law Moslem justness ?- Muslim law is an an different(prenominal)(prenominal)(prenominal) fundamental source of Malaysian law.It refers to the legal rules that are part of the Syariah and enacted as law in unity with the federal official and say penning. incorporation of Moslem principles into land laws and banking laws. Moslem law applies to all Muslims and of peculiar(prenominal) importance are the laws relating to family matters (marriage & divorce) & category of assets/properties of the deceased souls. ? It is more and more being applied in our local laws e. g. through the ? In Malaysia the Islamic law applied is of the Shafii school of jurisprudence (mazhab), with more or less modification by Malay adat (customary) law. Islamic law is applicable only to Muslims and is administered in the Syariah court. Except for the federal Territories, the dry lands have the federal agency to administer the Islamic law. ? term 121(1A) of the federal establishment states that the accomplished courts have no jurisdiction in respects of all matter indoors the jurisdiction of Syariah court. It posseses gracious jurisdiction in transactions between parties who are Muslims, and special(a) nefarious jurisdictions over disrespects by Muslims against piety. ? The Sources of Islamic law are The Quran, Sunnah, Ijma, Qiyas and so on SOURCES OF rectitude WRITTEN LAW Written law is the most important source of law in Malaysia. It is in writing and includes the following the national and give in constitutions, legislations and subsidiary/delegated legislation national Constitution is the exacting law of the country and no law can go against it. It sets out the complex body part of the establishment and states that Malaysia is a system of parliamentary body politic with no separation of legislative and executive branch. However, the terrace is a separate branch. The federal Constitution also states the basic rights of every(prenominal) citizens, such(prenominal)(prenominal)(prenominal)(prenominal) as rights to education, citizenship rights and voting rights.There is also freedom to formula ones own morality, although Islam is the religion of the Federation. The call down composition sets out the structure of the state semipolitical sciences and provides for the being of a maintain legislative convocation in each(prenominal) state. The function of the state legislative manufacturing is to enact laws for the state. Legislation is enacted by the parliament at federal train and by the state legislative Assembly at the state level. The federal official and State legislative gathers are not imperious as they can only enact laws in unanimity with the stipulated procedures in the national and State Constitutions.Law made by the fan tan is called an Act bit law made by the State legislative Assemblies is called an economy or Ordinance. auxiliary or delegated legislation arises when parliament delegates its rights to make law to another body such as the subgenus Pastor concerned or a local chest. These laws are cognise as jurisprudences or by-laws. There is a need for committal as the fantans time is restrain and abouttimes specialized expertness in indisputable areas of the law is need WRITTEN LAW FEDERAL writing ? The meaning of the term Constitution It is used in two senses ?The body of legal and non-legal rules concerning the government of a state ? A single written document having special legal status, which establishes the state, and sets out the structure and places of the state ? In Malaysia, there are 13 states and three federal territories ? There is one national Constitution and 13 States Constitutions ? The national Constitution is the irresponsible law of the land. The FC sets out the structure of the countrys government and states that Malaysia applies the system of parliamentary democracy. It lays down i) the agency of the federal official and State presidencys ii) fundamental rights of ndividual such as the rights to education, voting & freedom to practice ones own religion, although Islam is the official religion of the country. iii) Citizenship iv) the judiciary v) Financial alimentation vi) humankind serve vii) Relationship between Federation and the States viii) etc. WRITTEN LAW STATE physical composition ? Each state has its own opus. ? This constitution regulates the government of that particular state. ? The powers of a state is provided in the State magnetic dip of the Federal Constitution. exemplification of matter which travel at a lower place the State careen is Islamic someoneal and family laws. W RITTEN LAW edict Also know as firsthand legislation ? Refers to law enacted by ? fan tan at federal level ? State Legislative Assemblies at state level ? hold 74(1) Parliament makes laws on matters listed in the Federal List or coinciding List ? term 74(2) State legislative assembly makes laws on matters listed in the State List or coincidental List. ? deviceicle 75 if state law inconsistent with federal law the federal law prevails. Types of Legislation ACTS Enacted by Parliaments ENACTMENTS Enacted by State Legislative Assemblies ORDINANCES Promulgated by the YDPA During Emergency & Laws enacted by Sarawak State Legislative Assembly Laws enacted by the Parliament btw maiden Apr 1946 10th tribe 1959 ? Also know as delegated/ subordinate legislation ? Law made through powers delegated by the legislature to a WRITTEN LAW footslogger LEGISLATION body or person via a heighten statute ? Sec 3 of the edition Act 1948 & 1967 defines SL as ? Any proclamation, rule, regul ation, order, notification, bylaw or other creature made under any Act, Ordinance or other lawful authority & having legislative effect. ? why SL is needed i. The legislature has insufficient time ii.Better to leave the extremely technical chance of the legislation to the experts or administrators on the think over iii. The legislature is not continuously in session & the procedures are cumbersome The Federal Constitution The general features of the Malaysian Federal Constitution ? The mastery of the Federal Constitution. In Ah Thian v Government of Malaysia (1976), Suffian LP pointed out that the doctrine of Parliamentary control does not apply in Malaysia. here(predicate) we have a written constitution. The power of Parliament and state legislatures in Malaysia is holded by the Constitution. The legislature, the executive and the judiciary and all institutions created by the Federal Constitution and ancestry their powers from it are beat to the victuals of the Federal Constitution. finesseicle 4(1) of the FC declares that the FC is the supreme law of the confederation and any law passed after the merdeka sidereal day that is inconsistent with FC is (to the boundary of the inconsistency) void. dodge 162 pre merdeka laws shall be applied with such modifications as whitethorn be obligatory to make them coincide with the FC In Dewan Undangan Negeri Kelantan & Anor v. Noordin Bin Salleh & Anor.The Supreme Court declared that a law passed by the Kelantan State Legislative Assembly to be void as the said state law contravened the victual of the Federal Constitution that guaranteed the freedom of association. ? rudimentary Liberties/ Basic adult male Rights ? The Constitution highlights and safeguards certain(a)(prenominal) fundamental gay rights essential for the continuance of human race. ? The constitution protects our freedom an restrains any law or any other power from encroach and taking apart our basic rights. ? Examples o subte rfugeicle 5 No one shall be disadvantaged of his life or personal iberty except through the provisions of law. A person whitethorn not be unlawfully detained, he must be sensible of the ground of his chink and must be produced before a Magistrate within 24 hours. o article 6- prohibits bondage and forced labour. o article 7- protects against retrospective bend laws and repeated trials. o artificeicle 8 provides for equality before the law and equal protection of the law. o fine article 9 provides for freedom of impulsion o o o o name 10 freedom of speech, looking at and association. Art 11 Rights to profess & practice & propagate religion Art 12 Rights of education Art 13 Rights to propertyRestraints ? Art 5 i) Govt. entitled to stop/ keep back individual from leaving/visiting country for various reasons. E. g. political boycott, threat of war, pending illegal charges, etc . , ii) indispensable Security Act detention w/o trial exempted from complying with Ar t 5 ? Art 6 compulsory inspection and repair for national purposes cipher incidental to help of imprisonment are not considered slavery/labor force ? Art 7 the acquitted/convicted can be outleted to disciplinal action by a domestic tribunal for the selfsame(prenominal) offence, OR being tried under difference statute Art 8 Art 153 allows qualification of quotas for bumiputras AG is given power to ramify individual for unrestricted interest indisputable people racket immunity. E. g. monarch, diplomat, special rapporteur for UN ? Art 9 opened to banishment order made by Deputy curate of Home personal matters under s 2(i) of Restricted lobby Enactment ? Art 10 liberty of speech slander Act 1957, anarchy Act 1948, decreed Secrecy Act, create Presses & Publications Act 1984 liberty of Assembly grant is sin qua non. Has to recompense the police the assembly is not negative & excite flap of peace Art 11 propagation is subjected to clause 4 where the stat e & federal law may restrict, control the act of propagation of any religion among persons profession Islam Clause 5 In physical doing religious practices, The FC forbids any act which may lead to existence disorder, affect earth health or human beings morality. elusion (Halimatussaadiah v Public Service Commission, Malaysia, Anor 1992 ? Art 12 subject to Art 152 national language and Art 153 bumiputra quotas. shift Merdeka University v Govt of Msia 1982 ? Art 13 subject to acquisition by the govt. ut entitled to receive fair & reasonable compensation. Case Kjaan Negeri Johor & Anor v Adong bin Kuwau & Ors 1998 ? Amendment of the Federal Constitution ? All institutions created by the Federal Constitution and etymologizing their powers from it are subject to the provisions in Federal Constitution . ? The provisions that are written in the Federal Constitution can only be revise by certain methods provided for by the Federal Constitution itself. ? Article 159 provides fo r 4 methods by which the Federal Constitution can be amended 1. Requiring special Majorities 2. Requiring harmonize of assemblage of Ruler 3.Requiring Consent of Sabah & Sarawak 4. not requiring peculiar(prenominal) Majorities DIVISIONS/CLASSIFICATIONS OF LAW ? good rules can be divided up in umpteen different ways. ? Not all legal rules are of the same type ? They order of battle differences in purpose, in origin and form, in the consequences when the rules are breached and in matters of procedure, remedies and enforcement. EXAMPLES OF DIVISION OF LEGAL RULES ? 1. statute v common/case law ? 2. criminal law v cultivated law ? 3. national law v supranational law ? 4. public law v underground law sorry law v civil law ? Criminal law means the law relating to criminal offense. Civil law means the law not relating to iniquity. ? The difference relies in the nature of the proceedings and the physiognomys that may follow DIFFERENCES BETWEEN A CRIME AND A cultured dispara ge CRIME ? 1. A crime is a public CIVIL WRONG ? 1. A civil upon is an ill-use. It constitutes breaches and violations of public rights and duties repayable to the community as a whole. irreverence of a private civil right which belongs to an individual. ? 2. A crime is prosecuted by ? 2. A civil harm is filed by the public prosecutor on behalf of the government criminal charges cannot be filed by an individual.An act is a crime if the kisser is enforced at the discretion of the state utilize a criminal procedure. the damage or wronged individual. An act is a civil wrong if the sanction is enforced at the discretion of the political party whose right has been violated, using a civil procedure. ? 3. If the outcome of the ? 3. Civil wrongs are usually procedure is penalty in the form of sentencing after a finding of guilt, thusly the act or wrong is a crime. Crimes are punishable by imprisonment, fines or capital punishment. solved through accolade monetary modify to the wronged individual.If the outcome is a judgment for damages, compensation, restitution, solving of rights, order of specific performance, a exclusive right order, etc. , indeed the act or wrong is a civil wrong. ? 4. The punishment for ? 4. There is no set limit on crimes has already been set down in rule and punishment is by and large decided by the type of crime that was committed, the seriousness of the offence and, in some instances, the history of the offender. the add up one found guilty of a civil wrong can be made to pay. public LAW V PRIVATE LAW ? Public law is concerned with the distribution nd exercise of power by the state and the legal relations between the state and the individual. ? For example, the rules governing the powers and duties of local authorities, the regulation of realizeing standards, the publish of passports, the compulsory leverage of land to build motorway all fall within the ambit of public law. ? Private law is concerned with the legal rel ationships between individuals such as the liability of employers towards their employees for injuries sustained at work, consumers rights against shopkeepers and manufacturers over faulty goods or owners rights to prevent others paseo across their land.