Law in Malaysia

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