Concept of law
0 Law is understood as a rule of conduct, in most
instances backed by sanctions.
0 Law is enacted and recognised by a society as binding
0 Law is enforced by the State (note that in Malaysia
there are federal authority and state authority –
Federalism)
0 Its aim is to attain justice (though the notion of justice
is abstract and subjective)
Classification of law
0 3 broad divisions:
0 Public law
0 Private law
0 International law
0 Public law is the law that governs relationship between individuals
and state such as constitutional law (rights of individuals, power of
the government) and criminal law (codified offences and its
repercussions, not limited to the Penal Code)
0 Private law is concerned with matters that affect rights and duties of
individuals amongst themselves. It intends to give the victims
compensation and enforcement of obligations)
0 International law is the body of law that governs the conduct of
states such as law regarding the use of the high seas, law of war and
transboundary environmental issues.
Sources of law
0 The legal rules that forms the law in Malaysia
0 2 classification:
0 Written law
0 Unwritten law
Written law
Unwritten law
The most important source of law that includes:
• The federal and state constitutions.
• the FC is the supreme law of the land
(Art.4) Any law that was passed which
is inconsistent with the FC shall be void.
• The FC also lists down the fundamental
rights of individuals.
• FC can be amended with 2/3 majority
vote in Parliament – in contrast with the
simple majority rule for normal laws.
Laws that are not enacted and could not be
found in a codified form.
They can be found in decisions of the courts
(cases), local customs etc.
•
•
•
Legislations enacted by Parliament
• Acts, Ordinances, Enactment, by-laws
• Legislation refers to law enacted by
Parliament (federal level – List 1 of the
9th schedule) or State legislative
assemblies (state level – List 2 of 9th
schedule)
• Laws are enacted in accordance with
the FC and SCs
•
Subsidiary legislations
• Made by persons or bodies under
powers conferred on them by Acts.
•
Principles of English law applicable to
local circumstances – common law &
equity
• Only laws as administered in England
on 7 April 1956 (cut off date) as
provided by S.3(1) Civil Law Act 1956.
• English law after cut off date –
Malaysian courts are not bound to
follow (Mohktar v Aramugam [1959]
MLJ 232 and also in Ong Guan Hua v
Chong [1963] MLJ 6)
• Rely on English law carefully so that
local law can develop
Judicial decisions of superior courts
• Rule of stare decisis (doctrine of biding
judicial precedent) as affirmed in Mah
Kah Yew v PP (1971) 1 MLJ 1
Customs - Malay adat
Islamic law
0 Another important source of law in Malaysia
0 Once the law of the land
0 The Shafii school
0 Islamic law is not foreign law but local law and the law of the land. The
court must take judicial notice of it and must propound the law (Ramah
v Laton [1927] 6 FMSLR 1278)
0 Islamic laws in Malaysia is confined to the personal laws and within the
powers of the State (9th Schedule FC)
0 Enforced by the Syariah courts.
0 Syariah punishment – 3 years imprisonment, RM5000 fine or 6 strokes
of whipping.
Administration of Justice
0 Hierarchy of courts:
0
0
0
0
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Federal court
Court of appeal
High court (Malaya and Sabah Sarawak)
Sessions court
Magistrate court
0 There are also:
0 Penghulu court (Semenanjung)
0 Native court (Sabah Sarawak)
0 Others:
0 Industrial courts
0 Court martial
0 tribunals