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INTRODUCTION TO THE

CONCEPT OF LAW IN MALAYSIA


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Prepared by: Pn. Siti Nurazani Mustaffa


Commerce Department
Politeknik Mersing Johor
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COURSE OUTLINE
Concept of law in Malaysia
Concept of Law
Types of Law
The sources of Malaysian Law

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WHAT IS LAW?

OxfordDictionary:
The system of rules which a
particular country orcommunity
recognizes as regulating the
actions of its members and which
it may enforce by the imposition
penalties.

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Sir John Salmond


(1862-1924):
The body of principles recognized
and applied by the
stateintheadministrationofjustice

CLASSIFICATION OFLAW

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CLASSIFICATION OFLAW
Public law:
The law which governs the relationship between individuals and the state.
Public law may be further subdivided into twocategories i.e. constitutional
law and criminal law.
Constitutional law lays down the rights of individuals in the state. It deals
with questions such as supremacy ofParliament and rights of citizens. It also
covers areas dealing with state and federal powers.
Criminal law codifies thevarious offences committed by individuals against
the state. A crime is a wrong against the state for which punishment is inflicted
by thestate.
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CLASSIFICATION OFLAW

International law:
The law which governs therelationship between state and state.
It may be subdivided into twocategories:
Public
Internation
al Law

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Private
International
Law

CLASSIFICATION OFLAW
Private law:
Private law concerned with matters that affect the rights and
duties of individuals amongst themselves.
Basically, private law is intended to give compensation to person
injured, to enable property to be recovered from wrongdoers and
to enforce obligations.
Examples : law of tort, contract law, law of succession,
employment law, property law, family law, labour law,
commercial law, etc.

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SOURCES OF MALAYSIAN LAW

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WRITTEN LAW
Written law is that portion of Malaysian law which is written and is
made by Parliament, legislative assembly (Dewan Undangan Negeri)
and have in the constitution.
Its found in the federal constitution, state constitution, federal
legislation, state legislation and subsidiary legislation.
Malaysian written laws are contained in codes and statutes known as
Acts,Ordinances, andEnactments.
a) Acts :
Acts are laws enacted by the Parliament.
There are 4 types of Acts: the Principal Act, the Amendment Act, the
Revised Act, and the Consolidated Act.

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WRITTEN LAW
b) Ordinances
Ordinances are laws enacted by the federal legislature between 1 April
1946 - 10 September 1959.
Laws promulgated by the Yang Di-Pertuan Agong during an emergency
proclaimed under Article 150 of the Federal Constitution are also known as
ordinances.
c) Enactments
Enactments are laws enacted by State Legislative Assemblies. However,
the State Legislative Assembly laws in Sarawak are known as ordinances.

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FEDERALCONSTITUTION
Provides the powers of the Federal & State Governments
Provides fundamental rights of individual
The Federal Constitution is the supreme law of the land. Generally, any
law which is inconsistent with the Federal Constitution is invalid.
The Malaysian Parliament functions under a written constitution and is
governed by it. Its law making power is limited by the provisions in the
constitution.
However our Parliament as a legislative body has the capacity to amend ,
repeal and make new constitution by way of two third majority vote of the
both houses of Parliament. ( Dewan Negara & Dewan Rakyat).
The Federal Constitution also establishes a constitutional Monarchy and a
Federal System of Government.
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STATECONSTITUTION

The 13 States of Malaysia have individual constitutions which


provide for a single chamber Legislative Assembly in each state.
The government is headed by a Menteri Besar or a Chief Minister.
(In the Malay States the MB is assisted by a cabinet known as the
Executive Council) In Sabah & Sarawak, members of the
Executive Council are known as State Ministers.
Regulates StateGovernments
Contains provisions derived from 8th schedule ofthe
FederalConstitution
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LEGISLATION
It refers to laws made by a person or body which has
power to make law. In Malaysia, Parliament and
Legislative Assemblies have powers to enact laws in
their respective areas. Laws made by Parliament may
extend to the whole country. However, laws enacted
by a State Assembly only apply to that particular state
only.
Examples: Act - Federal Law made by Parliament (lawsmade
after 1957)
Enactment - State Law made by Legislative Assemblies
Ordinance - Law made by YDPA during Proclamation of an
emergency when Parliament is not sitting concurrently.
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SUBSIDIARYLEGISLATION
LawsmadeunderanyActs,EnactmentsorOrdinancesVeryimportantbecausespecifythelawsinmore detail and for
everyday matters
Also known as delegated legislation. A statute will confer power
on an authority for it to enact rules and regulation. Example:
Parent Act (main law) :Hire-Purchase Act 1957
Subsidiary Legislation : Hire-Purchase(Repossession) Regulation
Subsidiarylegislationmadeincontraventionofeithera parent Act
orthe Constitution is void

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UNWRITEN LAW
Unwritten law is that portion of Malaysian law which is
not written and is not made by Parliament, legislative
assembly (Dewan Undangan Negeri )and not in the
constitution.
It found in cases decided by the court, local customs,
English law and Islamic Law.

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ENGLISH LAW

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Used to fill the vacancies available in Malaysian law (only when it


necessary).
Three sources in English common law:
i) common law itself
ii) justice decision based on Lord counsellor
iii) act
Applicable in the absence of local laws
Suitable to local circumstances

English Commercial Law?

Section 5(2) of the Civil Law Act 1956, English commercial law applies to
Penang, Malacca, Sabah & Sarawak

If no local laws applicable

Today, many local laws dealing with commercial matters


e.g. Contracts Act 1950, Partnership Act 1961, Companies Act 1965
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LOCAL CUSTOMS

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Customs practiced by local people


Used for cases of marriage and the division of the property and assets upon
a persons death.

It depends on the varieties of race and decisions made by the heads of


people.
For Chinese and Indian, it was modified when the arrival of the English
people in a variety of civil law enactment.
Sabah and Sarawak: native customary laws apply

Peninsular Malaysia:
Adat Perpatih - Malays in NS & Naning in Melaka (land, lineage, election of
rulers)
Adat Temenggung - many states
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ISLAMIC LAW

Applies to all persons who are Muslims and is of particular importance in


matter relating to family disputes and the issues pertaining to estate
matter such as the division of property and assets upon a persons
death.

family matters (marriage and divorce)

estate matters (inheritance, wasiat)

Depend on Mazhab Shafie.

Leaders to implement Islamic law is sultan / king for their states and for
states of Melaka, Penang ,Sabah and Sarawak, leader to implement
Islamic law is the general ruler (Yang Dipertuan Agong).

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JUDICIAL DECISION

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Judicial decisions: Judges decision

The principle of "binding precedent" (duluan mengikat):


Not decide cases arbitrarily -must follow precedents (previous
decisions of similar situations).
Each court is bound by the decisions of courts of the same level or
higher than it in the same hierarchy of courts, whether or not it
believes a decision is correct.

Judicial decision comes from decision in the Federal Court


decision, the High Court and the Privy Council judicial committee.
Without the concept of "binding precedent, it depends on the
discretion of justice.

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JUDICIAL SYSTEM IN MALAYSIA

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Federal Court/Court of Appeal


The supreme court in Malaysia.
These court have jurisdiction to hear appeals from the
High Court.
This court can also decide whether federal law or
state law is valid or not.
These court also have jurisdiction to hear the
resolution of disputes between the central
government and state governments.

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High court
This court have jurisdiction to hear civil and criminal
cases.

Civil cases are heard here involving claims exceeding


RM280, 000.

This Court will award all kinds of punishment,


including capital punishment. other matters, including
in the case of bankruptcy, custody, matrimonial
property and such.

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Session court

This court have jurisdiction to hear civil cases where


the claim is between RM25, 000 to RM280, 000.

Imprisonment in civil claims is more than 10 years but


not to the death penalty.

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Magistrates Court
This court can hear civil cases where the claim does
not exceed RM25,000.

Imprisonment not exceeding 10 years.

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Penghulus Court
The court of a penghulu, or Malay village head : the power to
hear civil matters of which the claim does not exceed RM50, where
the parties are of an Asian race and speak and understand the
Malay language.
The Penghulu Courts criminal jurisdiction is limited to offences of
a minor nature charged against a person of Asian race which is
specially enumerated in his warrant, which can be punished with a
fine not exceeding RM50.
In Sabah and Sarawak, there are no Penghulus Courts, but there
are instead Native Courts having jurisdiction on matters of native
law and custom.
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QUESTIONS
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1.

The main sources of Malaysian law comprise:


statute law, unwritten law and Islamic law
(True / False)

2.

The following are written law except:


a. Legislation enacted by Parliament and State
Assemblies
b. Judicial decisions of the superior courts
c. Subsidiary legislation
d. State Constitutions
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Cont.
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3.

Unwritten law also referred to as statute law


(True / False)

4.

In Perak, Malacca, Sabah and Sarawak, English


commercial law at the date on which the matter
has to be decided is applicable in the absence
of local legislation (True / False)

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Cont.
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5.

Judge decides cases arbitrarily without refer to decided cases


(True / False)

6.

The following statements are true except:


a. Federal Constitution provides fundamental rights of individual
b. Judge must follow precedents (previous decisions of similar
situations)
c. English law applicable in the absence of local laws even
though not suitable with local circumstances
d. State Constitutions contains provisions derived from 8 th
schedule of the Federal Constitution

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Cont.
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7.

Subsidiary legislation made in contravention of either a


parent Act or the Constitution is voidable (True / False)

8.

Private law is the law which governs the relationship


between individuals and state (True / False)

Define the word law?


___________________________________________
___________________________________________

10. What is meant by judicial precedent?


___________________________________________
___________________________________________
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THE END
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