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LAW037

LEGAL SYSTEM

Definition: A procedure or process for interpreting and

enforcing the law.

Three main types of legal systems in the world

- Common law
- Civil law
- Religious law

Common law Civil law

Derived from English Law
Refers to case laws
(judicial precedent)
Adversarial
(lawyers play active role)
Based on the rights of the
individual
(a way of determining
individual rights, meant to
regulate lives rather than
best interest of society
itself)
Unwritten law
(law that has not been
enacted by the legislature)
Based on judicial
precedent
(first case ever decided in
the court, obeys doctrine of
stare decisis)
i.e. UK, Australia, Hong
Kong, USA, Canada
Derived from Roman Law
Refers to statutes
(i.e. Fed Cons, Acts)
Inquisitorial
(judges play active role)
Based on the best interest
of the society
Written law
(law that has been enacted
by the legislature, i.e. Fed
& State Cons, Fed & State
Legislations, Subsidiary
Legislation)
Law is codified
(decision-making must be
referred from constitutions,
acts or other statutes)
i.e. Italy, Spain (French),
Germany, Austria
(German)

Religious law

- Refers to law that derive its authority from

religious sources, i.e. holy books, traditions.
- Code of ethics and morality which is upheld
and required by God.
- A legal system which stems from sacred texts
of religious traditions.
- Islamic law is one of the most widely used
religious law and is one of the three most
common legal systems in the world.
- i.e. Iran, Saudi Arabia, Malaysia, Pakistan,
Sudan, Yemen.
- Shariah (Islam), Halakha (Judaism), Canon
Law (Christian).
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ADVERSARIAL AND INQUISITORIAL SYSTEMS Differences between adversarial and inquisitorial

systems
Adversarial system:
Adversarial Inquisitorial
- A legal system used in the common law Both sides of the parties Judge plays the main and
countries where two advocates represent their have the chance to present active role in the court.
parties' positions before an impartial person or their arguments before a
group of people, usually a jury or judge, who neutral umpire for a
decision.
attempt to determine the truth of the case.
Cost: Cost:
- Applied in UK, Malaysia, most Commonwealth Expensive lawyers with The court controls and
countries and US. higher reputation will limits the cost including
- In Malaysia, the core concept of litigation is the charge more. delayed trials (cheap)
adversarial system, whether civil or criminal. Examination in court: Examination in court:
- Refers to a system which provides a contest Evidences are tested for All evidences are
between two people of conflicting interests, e.g. accuracy by examination in submitted and examined
chief, cross-examination by the judges.
in a criminal case, it involves a public
and re-examination.
prosecutor and an accused person and in a Primary goal: Primary goal:
civil case, a plaintiff and a defendant. To win the case. To achieve justice.
- The function of a judge is to play a passive role Lawyers play active role Judges play active role
and his duty is to conduct the trial, to observe while the judges play while the lawyers play
the relevancy of evidence and its discovery. passive role. passive role.
- Parties are the ones who determine the issues Used in common law. Used in civil law.
and provide evidence to prove their claims i.e. (law that refers to case (law that refers to statutes)
laws)
active role of the parties in a trial, particularly
the counsels who play the dominant roles.
- The advocate in the adversarial system is fused Process of adversarial system
profession, where the lawyers are the
advocates as well as the solicitors. 1) Examination in chief
- On the contrary, in England there are barristers - The purpose is to adduce evidence in support
and solicitors. of facts in issue.
- The witness may not be asked leading
Inquisitorial system questions.
- A leading question is one which suggests a
- A legal system where the court is actively
desired answer.
involved in determining the facts of the case.
2) Cross-examination
- The judge plays a significant role and
- A witness is expected to verify the particular
responsibility in trial.
matters that the lawyer put to him.
- Judge has control over the way evidence is
- A witness may be cross-examined by any party
collected. He will analyzed the evidence and
who did not call him.
document submitted.
- Leading questions may be asked. Leading
- Emphasized more on documentary evidence.
questions provide for effective cross-
- Lawyers and prosecutions are working together
examination because the facts are supplied by
with judge to achieve just decision.
the lawyer.
3) Re-examination
- The purpose is to enable the witness to explain
and clarify relevant testimony which may have
been weakened in cross-examination.
- The witness may not be asked leading
questions but previous consistent statements
may be put by leave of court.
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Illustration : Whitehouse v. Jordan (adversarial) Advantages of inquisitorial system

- Facts: Mrs. W alleged Mr. J, the obstetrician
had negligently pulled too hard with forceps
when attempting to deliver her baby.
- Evidence from Mrs. W: Her own story that she
had been lifted off the delivery bed by the
pulling ; Support by 2 experts by reading
hospital notes and her story.
- Evidence from Mr. J: Couldnt remember the
facts but based on statement from junior
colleague, senior and support by other experts,
hes not negligent.
- In order to prove the case, firstly, Mrs. Ws
lawyer questioned her to bring in her story and
opinion. This process in called as examination-
in-chief.
- Secondly its up to Mr. Js lawyer to shake the
plaintiffs evidence, bring doubt to the facts
given. This process is called as cross-
examination.
- The decision rests in the hands of crime
expertise.
- All evidences will be checked.
- No chance of being swayed by fancy
arguments.
Disadvantages of inquisitorial system
- When the judges do majority of the work, less
lawyers are needed.
- The judge has a lot of burden as he has a lot of
work to do (slows down the process).
- The judgement rests on one person. Therefore,
the question of bias is never completely clear.

Illustration : Ex p. Moore (inquisitorial)

- Ms. Moore suffered from slipped disc, which

she claimed was due to her bending at work in
her job as a crane driver.
- The tribunal conducted the case by referring to
reports from two doctors who did not appear
before the tribunal.
- This is inquisitorial proceeding as decided by
the court and not against principle of natural
justice.

Advantages of adversarial system

- Any evidence brought into the court is tested

for its accuracy by the examinations.
- The continuous trial helps to speed up the
resolution of the dispute for justice delayed is
justice denied.
- The judge cannot comment until both sides are
heard (less biased).
- The dispute is decided by an independent
judge which gives the public confidence in the
legal system.

Disadvantages of adversarial system

- Much emphasis is placed on legal argument in

court, thus skilled lawyers are more rewarded.
- Successful court action is often expensive.
- Not all evidences in a dispute may be
presented in the court.
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CRIMINAL AND CIVIL LITIGATIONS PRELIMINARY MATTERS

Civil Criminal Parties to the suit

Involves private disputes Involves an action that is
between persons or considered to be harmful - For civil litigation: plaintiff vs defendant //
organisations. to society as a whole. appellant vs respondent
Lawyer represents clients. Public prosecutor - For criminal litigation: PP vs accused
prosecutes on behalf of the
- Categories of people that can be a party:
state.
Matters include contracts, Matters include murder, 1) Individuals
partnership, agreements, theft, rape. 2) Person under disability (unsound mind/
marriage. minor Age of Majority Act, under 18)
To compensate the plaintiff To punish the wrongdoer. 3) Incorporated bodies
for injuries or damage. 4) Partnership
5) Federal/state government
6) YDPA, Rulers
Civil litigation 7) Foreign states
8) Societies
- Governed by the Civil Procedure.
9) Trade Union
- Sources:
1) Statutes: Courts of Juridicature Act 1964 Cause of action
2) Rules: Rules of High Court 1980,
Subordinate Courts Rule 1980 - A set of facts or allegations sufficient to justify a
3) Case Law right to sue.
4) Practice Notes/Directions (circulars issued - Why the case is brought to the court.
by Chief Registrar of High Court, not law - The importance:
but smoothen the procedure) 1) To determine the form of proceedings to
be taken in court.
Criminal litigation 2) Pleadings (written statements filled by
each party stating their claims) must state
- Governed by Criminal Procedure.
cause of action.
- Sources of Criminal Procedure:
- The plaintiff must have a complete cause of
1) Statutes: Courts of Juridicature Act 1964,
action.
Subordinate Courts Act 1948
- Case: Taib Awang v Mohamed Abdullah, the
2) Criminal Procedure Code
plaintiff was convicted in Kadis court and he
3) Case Law
appealed. But before his appeal could be
4) Practice Notes/Directions
heard, he commenced an action for malicious
prosecution. Held: Action failed due to
incomplete cause of action.

Locus standi

- A place to stand.
- The person commencing an action must have
an interest in the subject matter.
- Case: Atip Ali v Josephine Nunis, a woman
filed a suit against a former Malacca chief
minister and later discontinued it. The members
of the political party of that former chief oddly
believed that she was insulting their honour,
and sued for defamation. Held: Action failed.
Defamation is a personal action and only the
person who has been defamed can take action.
It was personal to the former chief minister
involved, and not the members. No locus
standi.
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Limitation period he would have enjoyed had the promise

been performed.
- A period of time within which a party to a case 2) Nominal damages: A small token award
must bring an action. where the plaintiff has proved a breach but
- A time frame. suffered no actual loss.
- The plaintiff must initiate action within the 3) Exemplary damages: A sum awarded
specified period or else the suit will be time- which is greater than the actual loss
barred. suffered by the plaintiff, i.e. breach of
promise of marriage.
Action in tort and S.6(1) Limitation Act 1953 - Mitigation of loss duty to take reasonable step
contract 6 years from the date on to mitigate loss suffered.
which the cause of action
- Failure to mitigate loss may prevent the
accrued.
Action upon any S.6(3) Limitation Act 1953 innocent party from recovering damages for
judgement 12 years from date of avoidable costs.
enforcing judgement
Action to recover land S.9(1) Limitation Act 1953 2) Rescission of contract (S.40 CA 1950)
12 years from the date - Refers to the cancellation of a contract.
which right of action - When a party to a contract has refused to
accrued
perform it, the promise may put an end to the
Action for breach of trust S.22(1) Limitation Act 1953
contract, unless he has signified by words, or
6 years
Disability case (minor, S.24 Limitation Act 1953 conduct, his acquiescence in its continuation.
unsound mind) A minor ceased disability - Any person who has received any advantage
when he reaches 18 years from the contract is bound to restore it or make
old or died, whichever compensation for it to the person from whom
come first. he received it.
Disability ceased when an - The purpose of contract rescission is to restore
unsound mind get
the parties to their original status before the
certificate of sanity or dies
or appointed to look his contract was made.
affairs.
Action against any S.2 Public Authorities 3) Specific Performance (Specific Relief Act 1950)
public authority (state/ Protection Act (PAPA) - The actual carrying out the contract as agreed.
federal) 1948 - A decree of the courts directing the contract to
3 years after the wrongful be performed specifically according to its terms.
act complained.
- Given at the discretion of the court.
- Would not be granted if damages are an
Rationale of limitation period adequate remedy (S.20).

- You should not be sleeping on your right (to 4) Injunction (Specific Relief Act 1950)
make you more responsible and take fast - An order of the court requiring a party to do
action). something or not to do something.
- To protect evidence from being missing. - Given at the discretion of the court.
- Types:
Remedies 1) Temporary: granted for specific period.
2) Perpetual: final injunction where order
- Any method under the law to obtain redress for made at the end of trial.
the infringement of rights.
- When there is a breach of contract, the party 5) Quantum meruit
not in default may claim one or more of the five - Award made where one party has completed all
following remedies: or part of his side of the contract before the
others breach.
- It is a payment of the amount deserved for what
has been done up until the breach.
1) Damages (S.74-76 CA 1950)
- Money compensation for any loss or damage
suffered as a result of a wrongful act.
- Types of damages:
1) Substantial damages: Compensation
intended to put the plaintiff in the position
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CLASSIFICATIONS OF LAW Public law

- Law that governs the relationship between

Written/Unwritten
individuals and the state.
- Comprises of criminal/ constitutional/
administrative law.
International/National
- Criminal: wrongful acts against the state.
- Constitutional: lays down fundamental rights,
form of government.
Public/Private
- Administrative: power of administrative
agencies, taxation, etc.
Criminal/Civil
Private law

- Matters that affect the rights and duties of

Substantive/Procedural
individuals amongst themselves.
- a.k.a civil law.
Written law - i.e. contracts, tort, property, family, partnership.

- Law that has been enacted by Parliament or Criminal law

SLA.
- Malaysia: Fed Cons, State Cons, Legislation,
Subsidiary Legislation.
Unwritten law
- Law that has not been formally enacted.
- Found in cases decided by courts, local
customs, etc.
- Malaysia: Common law and equity, judicial
precedent, local customs
Civil law
International law
- Disputes between two nations.
- Rules and principles which governs the
relations and dealings of nations with each
other.
- Can only work if the nation-states accept and
abide by those rules.
- Primarily regulates the conduct of sovereign
states.
- Promotes welfare of entire international
community, and has to respect sovereign
states.
- i.e. Military agreements, diplomatic treaties,
trade regulations, international agreements.
- Body of law dealing with crimes and their
punishment.
- Concerned with public rights and remedies, that
is, with wrongs committed against the society.
- Party bringing the case state.
- Main goal is to punish the wrongdoers, teach a
lesson.
- Standard of proof: beyond reasonable doubt.
- i.e. theft, murder, rape.
- Body of law dealing with disputes between
people or between government and citizens.
- Concerned with private rights and remedies,
that is, the duties that exist among and
between persons, organisations, and
governments.
- Party bringing the case plaintiff.
- Main goal is to compensate the innocent party
for the damage done.
- Standard of proof: balance of probabilities.
- i.e. contracts, divorce, child custody.

National law

- Rules and principles which govern the

relationship between the citizens in the country.
- Also known as municipal/domestic law.
- Regulates the conduct of persons within a
sovereign state.
- Concerned with running a particular country
and promoting the interests of its people.
- i.e. Contracts, marriage, wills.
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Substantive law

- Law that governs the rights and duties of those

who are subject to it.
- Defines legal rules and principles, which guide
the courts in decision-making (i.e. theft is an
offence).
- i.e. Contracts Act 1950, Penal Code.

Procedural law

- Law that governs the procedures in the

enforcement of rights and duties under
substantive law.
- Procedures on how the substantive law is
applied
- Includes how to file a case, procedure in civil
and shariah courts, etc.
- i.e. Subordinate Court Rules Act 1955,
Evidence Act 1950, Criminal Procedure Code.

Common law and equity

Common law Equity

Developed by common law
judges, applying the
principle of stare decisis.
Also known as case law or
judicial precedent.
Complete system of law.
Remedies available as of
right.
The only remedy available
is an award of damages.
Developed by chancellors,
in dealing with petitions
addressed to the king from
citizens complaining about
the rigidity of the common
law.
(to correct common laws
defects and mitigates its
harshness)
Literally means fairness.
Complements of common
law, where their application
would operate harshly, so
as to achieve what is
sometimes referred to as
natural justice.
Discretionary remedies.
The remedies are of
equitable in nature,
including injunction and
specific performance.
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SOURCES OF LAW FEDERAL AND STATE LEGISLATION

Definition: The authority from which the laws derive their Legislation: Laws made by a person or body which has
force. power to make law.

Sources of Malaysian law Federal legislation State legislation

Passed by the Parliament. Passed by the SLA.
Applicable to the whole Applicable to that particular
country. state only.
Malaysia Laws enacted before Laws enacted by SLAs are
Merdeka Day are called called Enactments, except
Ordinances and laws for Sarawak Ordinances.
enacted after Merdeka Day
Written law Unwritten law are called Acts.
May contain matters listed May contain matters listed
in list I of the 9th schedule in list II of the 9th schedule
of FC. of FC.
Law that has Law that has not
been enacted been enacted by
by legislature legislature Legislative process

1) Pre-parliamentary stage
Written law - Government proposal.
- Meeting with relevant authorities.
- Drafting of bill.
- Cabinet approval.
- Goes to House of Representatives.
Written law
2) First reading
- Minister introduces the bill by reading the title
Federal and only.
Federal and Subsidiary
state - After the bill is passed at this stage, the text is
state legislation legislation
constitution
printed and distributed.

3) Second reading
- Members debate on general principle of the bill,
FEDERAL AND STATE CONSTITUTION followed by voting.
- If accepted, the bill is passed on for
1) Federal constitution consideration of the committee of the house.
- Supreme law of the country. (Art.4 FC)
- Lays down powers of federal and state 4) Committee stage
governments, and the fundamental rights of - Detailed examination of the bill and may amend
individual citizens. any part of it.
- Applies to all states of Malaysia. - Followed by a report on the bill to the house.
- Can only be amended by 2/3 of Parliament. - If the report is approved, the bill goes on to a
third reading.
2) State constitution
- Each state in Malaysia has its own constitution. 5) Third reading
- Contains provisions pertaining to state matters - Further debate and voting takes place.
as provided in 8th schedule to the FC. - Amendments may be put to a note.
- Matters include ruler and executive council - The house either passes or defeats the bill.
matters, land matters, agriculture, forestry and
Islamic law. 6) House of senate
- When a bill has passed one house, it is sent to
the other house.
- Similar procedure with House of
Representatives occur.
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- If the second house amends the bill, the bill 2) Legislative control
must be returned to the first house for its - The making of the subsidiary legislation is
approval. authorized by the Act which was enacted by the
legislative body (Parliament).
7) Royal assent - Because of this, the body can always exercise
- When a bill has passed both houses, it is sent control over the subsidiary legislation.
to YDPA for Royal Assent. - The legislature may repeal the structure or
- YDPA affixes Public Seal within 30 days of repeal or vary the delegated power.
presentation.
3) Consultation
8) Publication - Prior consultation with relevant body and
- The bill then becomes a law upon publication. interest groups are often required to be had
- To publish: gazette. before a subsidiary legislation is made.
- Sometimes the parent legislation makes such
consultation as compulsory.

SUBSIDIARY LEGISLATION 4) Publication

- Subsidiary legislation must be published in the
- Made by persons or bodies under power gazette.
conferred on them by Acts of Parliament or - Will become effective only from the date of
Enactments of SLAs. such publication.
- Refers to rules, regulations, by-laws, orders, etc - If not gazette, invalid.
made by an authority other than the Parliament - S.20 of Interpretation Act 1948 and 1967: No
and SLAs. person shall be made or shall become liable to
- a.k.a delegated or subordinate legislation. any penalty in respect of any act done before
- If made in contravention of either a parent Act the date on which the subsidiary legislation was
or the constitution, it is void. published.
- Deals with details of every day matters which
the legislature has neither time nor expertise to Advantages Disadvantages
enact. Flexible as it can be made, Bulk and frequent
amended, or modified changes.
Modes of control of subsidiary legislation easily and speedily.
Save the time of the Inconsistent with the
- Subsidiary legislation is made by executive, legislature. doctrine of S.O.P.
and executive law-making = inconsistent with The problem of lack of
doctrine of S.O.P. technical expertise is
solved.
- Vulnerable to abuse, i.e. lack of prior
discussion and consultation and excess of
power delegated.

1) Judicial control
- Court has control over subsidiary legislation.
- Can declare it as void if conflicts with parent Act
or constitution.
- Can be declared void on the ground of ultra
vires (beyond ones legal power or authority)
the parent Act.
- Case: Low Leng Huat v PP. Appellant was
convicted by the magistrate on the charge of
failing to comply with a notice directing him to
enlarge the open area of some of his houses.
The notice board was issued by the Sanitary
Board in accordance with a by-law. The
appellant challenged it as being in excess of
power as conferred by Sanitary Board
Enactment 1907. Held: The by-law was ultra
vires and therefore void.
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Unwritten law tenure of land in Malaysia and therefore there

is no room for English common law in that
field.

Unwritten law CUSTOMARY LAW

English
common law Customary law
Judicial
precedent
Judgement of
foreign courts
Writing of
jurists
Islamic law - Regular pattern of social behaviour accepted
and equity
by a given society as binding upon itself.
- Proved through repeated acts practiced over a
long period of time, leading to conclusion that
ENGLISH COMMON LAW AND EQUITY by common consent, they have become
accepted as norms.
- Comprises of common law and equity. - Art.160 FC customs and usages having the
- The extent of application of English law is force of law.
prescribed in S.3, S.5, and S.6 of the Civil Law - In Malaysia, it refers to the customs of the local
Act 1956. inhabitants which have been accepted as law
- The application of English law in Malaysia is by courts in Malaysia, i.e. Adat Perpatih, Adat
subject to two conditions: Temenggung, native customary law of SS.
1) In the absence of local statutes.
2) If it suits to local circumstances. Native customary law
- Not binding, but merely persuasive.
- S.3(1) CLA 1956: - Applied to the society in Sabah and Sarawak.
1) In West Malaysia, the courts shall apply - Adjudicate personal matters involving the
the English common law and the rules of natives, i.e. family law, property, customary
equity as administered in England on the land rights.
7.4.1956 (cut off date). - Administered by Native Courts.
2) In SS, the courts shall apply the English
common law and the rules of equity, JUDICIAL PRECEDENT
together with statutes of general
- The decisions of higher courts in previous
application, as administered in England on
cases must be followed by the lower courts in
the 1.12.1951 (Sabah) and 12.12.1949
similar cases or situation.
(Sarawak).
- Can be obtained from the decision of superior
- Case: Mokhtar v Arumugam: Malaysian courts
courts (federal court, court of appeal, high
are not bound to follow the position of the law in
court).
England after the cut off date.
- Case: Commonwealth of Australia v Milford
Two categories of judicial precedent
(Malaysia) Sdn. Bhd. & Anor: The common law
may be applied after the cut off date (but not
1) Binding
bound to) should not remain static and not - All decisions of higher courts bind the lower
develop. courts.
- S.5 CLA 1956:
- The high courts are bound by their own
1) All states except Penang, Malacca, Sabah decision.
and Sarawak apply English Commercial
Law as administered in England on
2) Persuasive (not necessary to follow)
7.4.1956. - High court judges are not bound to follow the
2) Penang, Malacca, Sabah and Sarawak decisions of another high court judges.
can use relevant and applicable English
- Decisions from outside of the Malaysian courts
common law continuously.
(English court).
- S.6 CLA 1956: related to land law.
1) Nothing in this part shall be taken to Doctrine of stare decisis: To stand by cases already
introduce into Malaysia any part of the decided. Ensures that cases must be decided the same
English common law relating to the tenure way when their material of facts are the same, as justice
or conveyance or assurance or succession requires similar treatment of similar cases.
to any estate, right or interest therein.
- Case: United Malayan Banking Corp. Bhd. v
Pemungut Hasil Tanah Kota Tinggi: The
National Land Code is a complete and
comprehensive code of law governing the
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Two-ways operation of stare decisis
1) Vertical
- A court is bound by the decision of higher court.
2) Horizontal
- Some courts are bound by its own previous
decision of predecessor, court with co-ordinate
jurisdiction.
Exceptions to the rule of stare decisis
- Precedent laid down by a lower court where the
case is on appeal.
- Given per incuriam: made by ignorance of a
statute or a binding precedent.
- When there are material differences in the facts
of the cases.
JUDGEMENTS OF FOREIGN COURTS
- Merely persuasive, but not binding.
- Commonwealth countries judgements can be
given consideration pari materia with Malaysian
courts.
- Malaysia has enacted statutes based on the
model of other countries, i.e. Penal Code and
Contracts Act 1950 India, National Land
Code (Australia)
WRITING OF JURISTS
- Refers to the article written by an expert on
legal subjects.
- Opinions of the jurists based upon their
interpretation of the relevant statutes and
cases, as to what the law is believed to be.
- Persuasive, but if the court adopts them as part
of the ratio of a decision (ratio decidendi), then
they become law.
- If not, it is called as obiter dicta.
ISLAMIC LAW (SHARIAH)
Means the path to be followed.
Primary sources
1) Al-Quran: words of Allah revealed to and
transmitted by Prophet Muhammad.
2) Sunnah: utterance, action or indirect approval
by Prophet Muhammad.
Secondary sources
1) Ijmak: unanimous agreement of the mujtahidun
of the Muslim community of any period
following the demise of Prophet Muhammad.
2) Qiyas: analogy, reasoning, and legal precedent
to decide new case law.
3) Maslahah mursalah: unrestricted public
interest.
4) Urf: customs and practices of a given society.
5) Istihsan: juristic preference.
Position of Islamic law in Malaysia
- The one applied in Malaysia is of the Syafie
school of jurisprudence, as modified by Malay
customary law.
- Only applies to Muslims and is administered at
state levels by a separate system of courts,
called Shariah Courts.
- Matters include marriage, divorce, adoption,
legitimacy and certain religious offences.
- FC provides that the states have the power to
administer Islamic law.
- Case: Lina Joy v Majlis Agama Islam Wilayah
Persekutuan & Anor: Converted from Islam to
Christiany, arguing that it came under her right
to freedom of religion under Art.11 of FC. She
seeks for permission to change her name to
Lina Joy, and also her religious status in her
I/C. Held: Name change was allowed but the
change of religious status in her I/C was
refused.
- She appealed in all courts but still failed to win.
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JUDICIARY Hierarchy of the courts

Definitions: FEDERAL COURT

Court: A place where justice is administered. COURT OF APPEAL

Court system: The system of law courts that administer HIGH COURT
justice.
MALAYA SABAH & SARAWAK
Jurisdiction: The power or authority to decide legal
cases. SESSIONS COURT

Original jurisdiction: The power of a court to hear a case MAGISTRATE COURT

in the first sentence.
Federal court
Appellate jurisdiction: The power to consider the case
after decided by lower court. - Established pursuant to Art. 121 (2) FC.
- Composition: Chief Justice, President of Court
Supervisory jurisdiction: The power of the superior courts of Appeal, two Chief Judges of High Courts, 4-
to supervise all subordinate courts. 11 other judges.
- Proceeding should be in accordance to S.74 of
Judicial review: The power to review the legality of a Courts of Juridicature Act 1964, be heard and
legislation. disposed by three or greater uneven number of
judges.
Composition: The structure of the court, including the
appointment of judges. 1) Original jurisdiction (Art.128 FC)
Civil appeals:
- To determine any appeal against decision of
Court of Appeal (S.96 COJA 1964).
Question of fact and question of law - To order a new trial of any matter tried by High
Courts.
Question of fact Question of law
Criminal appeals:
An issue of fact which the An issue arising in
- To determine any appeal from any decision of
truth or falsity must be lawsuit/criminal proceeding
determined by a judge or which is related to Court of Appeal (S.87 COJA 1964).
jury. determination of law.
Point of fact. Point of law. 2) Referral jurisdiction (Art. 128 FC)
Refers to evidence, Legal principles, cases - Constitutional issues tried in High Courts/
statement of witness. decided and interpretation subordinate courts.
of statutes.
Answers to questions are Only issue of law can
3) Advisory jurisdiction (Art. 130 FC)
considered to be fixed in raise.
trial (cannot raise an - YPDA may refer to Federal Court regarding
appeal). effect of any provisions in FC.
How long did you neglect Does leaving the children
your children? considered as against the
Child Act 2001?
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Court of Appeal
- Prior to 1985 = Privy Council.
- Abolished and replaced by Supreme Court.
- 1994 = establishment of Court of Appeal.
- Established pursuant to Art. 121 (1B) of FC.
- Composition: President of Court of Appeal, 10
other judges.
- Proceedings should be heard and disposed by
three judges or greater uneven number.
1) Civil appellate jurisdiction
- To hear and determine any appeal from High
Courts, except (S.68 COJA 1964):
1) Amount of subject matter less than
RM250,000 except with leave of the Court
of Appeal.
2) Where the judgement is made by consent
parties.
3) Where the judgement relates to cost only,
except with the leave of Court of Appeal.
4) Whereby any written law for the time being
in force, the judgement of the High Court is
expressedly declared to be final.
2) Criminal appellate jurisdiction
- To hear and determine any appeal against any
decision of High Courts (S.50 COJA 1964).
High Court
- Established pursuant to Art. 121(1) FC.
- There are two high courts High Court of
Malaya and High Court of Sabah and Sarawak.
- Composition: Each headed by a Chief Judge,
4-60 other judges (High Court of Malaya), not
exceeding 13 other judges (High Court of
Sabah and Sarawak)
- Every proceeding in the High Court will be
heard and disposed of before a single judge.
- The High Court have specialised divisions:
criminal, civil, commercial, appellate, family.
1) Original jurisdiction (S.24 COJA 1964)
- Unlimited jurisdiction in civil and criminal
matters.
- Civil: Includes divorce, matrimonial (marriage),
admiralty (maritime), bankruptcy, guardianship
of infant, wills, probate.
- Criminal: Any jurisdiction over citizen and non-
citizen.
2) Appellate jurisdiction
- Civil: No appeal for less than RM10,000 except
for question in law (S.27 COJA 1964).
- Criminal: To hear appeals from subordinate
courts according to any law for the time being
in force (S.26 COJA 1964).
3) Revisionary & Supervisory
- S.32 COJA 1964: Revisionary power for civil
cases to revise correctness or legality of
decision passed of any proceedings.
- S.31 COJA 1964: High Court is allowed to
revise criminal proceedings in subordinate
courts.
Sessions Court
- Established pursuant to S.59 Subordinate
Courts Act 1948.
- Highest of all subordinate courts.
- Presided over by a Sessions Court judge.
- Any appeal from Sessions Court will go to the
High Court.
1) Original jurisdiction
- Civil: Unlimited jurisdiction over matters relating
to accidents, landlord-tennants and distress
(S.65-70 SCA 1967), all suits where the
amount in dispute or the subject matter does
not exceed RM1,000,000 (S.26 SCA), all suits
for specific performance, rescission of contract
and injunction.
- Criminal: May try all offences except for those
punishable by death (S.63-64 SCA).
2) Supervisory
- May examine record of any civil proceeding
before the Magistrates Court.
- If any decision is illegal or improper, or any
proceeding is irregular, it must be forwarded to
High Court.
Magistrates Court
- Established pursuant to S.76 SCA 1948.
- Deals both civil and criminal offenses, sits in
almost all major towns in Malaysia.
- All appeals will go to the High Court (S.26-28
COJA 1964).
1) First class Magistrate
- Civil: To try all litigations where the matter in
dispute or subject matter does not exceed
RM100,000 (S.90 SCA).
- Criminal: To try all offenses punishable with up
to 10 years of imprisonment/ with fine only/
offenses related to punishment for robbery and
house breaking at night.
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2) Second class Magistrate
- Civil: Only to try civil cases where the plaintiff
seeks to recover debt or liquidated demand, not
exceeding RM10,000 (S.91 SCA).
- Criminal: Only to deal with cases where the
maximum punishment not more than 12
months of imprisonment or which is punishable
with a fine only (S.88 SCA).
Courts of special jurisdiction
- Special Court
- Court for Children
- Martial Court
- Industrial Court
- Shariah Court
- Native Courts
Special Court
- Established in 1993 after the constitutional
conflict involving the immunity of all Sultans
following the assault of a hockey coach by
Sultan of Johor (The Gomez Incident).
- Only deals with original jurisdiction.
- The registry is in KL.
- Only citizens of Malaysia can start the
proceeding Faridah Begum v Sultan Hj.
Ahmad Shah.
- No action to be instituted against YDPA or
Ruler except with the consent of Attorney
General.
- When Rulers are convicted with imprisonment
more than a day, he will ceased from being the
Ruler except by free pardon from CoR.
Court for Children
- Established under Child Act 2001.
- Replaced Juvenile Court.
- The purpose is to hear, determine and dipose
any charges against a child.
- A child is a person below 18 (in criminal
proceeding more than 10 years old).
- Composition: First Class Magistrate, two
Advisors (one must be woman) to inform and
advise the court with respect to any
consideration affecting the order made upon
finding of guilt or other related treatment of a
child brought before it, and if necessary, to
advice the parent or guardian of the child.
- Child detained under this court will be protected
from publicity, separate lock-up from adult and
close trial.
- The court is not open to public but only
attended by court officers, children who are
parties to the case including their parents,
guardians, advocates and witnesses.
- Cannot use the word person convicted,
conviction and sentence, must use child
found guilty, finding of guilt and order made
upon finding of guilt.
- Has the jurisdiction to try all offenses except
those punishable with death.
- Has the power to:
1) Admonish and discharge the child.
2) Discharge the child upon his executing a
bond to be of good behaviour.
3) Order the child to be placed in the care of
a relative or other fit and proper person.
4) Order the child to pay a fine,
compensation or costs.
5) Make a probation order.
6) Order the child to be sent to an approved
school or a Henry Gurney School.
7) Order the child, if a male, to be whipped
with not more than ten strokes of a light
cane (within the courts premise and in the
presence, if he desires to be present, of
the parent or guardian of the children)
8) Order the child to be imprisoned, if aged
14 and above.
Martial court
- Military court for army officers that commit any
offenses against military law.
- Possess jurisdiction over persons subject to
service law generally, members of the armed
forces.
- A service person is tried only by service
persons of his own rank or higher.
- The sentence imposed is subject to
confirmation by a superior officer.
- The court administers service law intended to
ensure discipline and good order among
service personnel so that absence without
leave, desertion, disobedience of orders are
punishable offences.
Industrial court
- Established under Industrial Relations Act 1967
and headed by President of Industrial Court.
- Exercises its jurisdiction on matters relating to
trade disputes and dismissal of a workman.
- Parties to dispute cannot take a matter directly
to the court via the Minister.
- The Industrial Court on receipt of reference
from the Minister will then proceed and
determine the case.
- The decision handed down by the Court is
referred to as an award.
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ALTERNATIVE DISPUTE RESOLUTION (ADR) Differences between negotiation, mediation,

conciliation and arbitration
Definition: Any method of resolving disputes other than
by litigation (settlement outside of the court).

Opportunity for the parties to set their terms of settlement

and reduce backlog of cases in the court.

Form of ADR

Negotiation

- Common mode of ADR.

- Non-binding process.
- Allows the parties to meet in order to reach a
compromise.
- The parties themselves control the process and
the solution.

Mediation

- The intervention in a dispute or negotiation of

an acceptable impartial and neutral third party.
- It is generally conducted with a single mediator
who does not judge the case, but simply helps
to facilitate discussion and eventual resolution
of the dispute.
- The objective is to assist the parties in reaching
a mutually-acceptable resolution.
- i.e. Malaysian Mediation Centre (MMC) body
established under the support of the Bar
Council.

Conciliation

- A process that involves a neutral third party to

communicate with the parties in the exchange
of information and settlement options.
- Normally, conciliator will be asked by the
parties to provide them with a non-binding
settlement proposal.

Arbitration

- Generally conducted with a panel of arbitrators

who take on a role like that of a judge.
- The common procedure is both sides agree on
one arbitrator, or each side selects an arbitrator
and the two arbitrators select a third arbitrator.
- An arbitration agreement can be made in one
of two ways:
1) The parties agreed in advance that in the
event that a dispute arises between them,
the dispute should be referred to an
arbitration.
2) An ad hoc reference to arbitration after a
dispute has arisen.
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Advantages of ADR
- Cheapness The relative cheapness of ADR
in comparison with the Courts is advantageous.
Costs normally associated with court
proceedings such as court fees, delays and
having to follow complex court processes are
not incurred with ADR.
- Speed The use of ADR is much quicker. In
particular one of the quickest and cheapest
methods of ADR is negotiation and this is
because parties get round the negotiation table
themselves to solve the dispute without the
need for representatives.
- Control With ADR the parties retain control
over the dispute and the way it is resolved
rather than handing over control to the Courts.
There is a saying with litigation in the courts to
the effect that once started no matter how sure
you are of the merits of your own case, there is
no knowing when it will end.
- Adversarial Court proceedings are
adversarial and about winning not losing,
whereas ADR is about finding possible
solutions to disputes. As the proceedings are in
private it can be a damage limitation exercise
and this can be important if the parties expect
to do business with each other in the future.
ADR can avoid bad feeling between the parties.
- Privacy Court proceedings are conducted in
public. The press is admitted and it is possible
for the case to be reported in the local or
national newspapers. A clear advantage ADR
is that the methods used are private and again
this may be an important factor if commercial
reputations are at risk.
- Expert Arbitrators With court proceedings
the Judge may be an expert in the area of law
involved but is not likely to be an expert in
building or civil engineering or whatever the
subject of the dispute is about. The judge
relies upon facts being presented to him or her
following detailed and expensive trial
preparation. Expert witnesses may well be
necessary and this will inevitably contribute to
the length of the trial and the overall cost.
When expert arbitrators are used they do not
rely upon expert evidence in the same way, this
means that the proceedings are usually quicker
and cheaper.
Disadvantages of ADR
- Willingness to compromise The use of
ADR is dependant upon the willingness of
individuals to compromise and to this extent it
is arguable that the parties are more likely to
settle for less whereas once they have
embarked upon court proceedings their
expectations may be higher. It could be that
one of the parties does not accept there is a
problem and is not prepared to compromise.
- Uncertainty Although ADR is generally
quicker and cheaper this is not always the
case. Even negotiations can drag on and
become lengthy and expensive with no
certainty of a resolution of the dispute. At least
with court proceedings there is usually
certainty.
- Complexity and Expense Generally ADR is
cheaper than using court proceedings but some
formal arbitration hearings can still be complex
and expensive depending on the subject matter
of the dispute. There are professional and
trained arbitrators and these can be expensive.
- Making a statement Because ADR is
confidential they are unsuitable if one party
wants to make a point and put out a clear
warning or send out a message about the
proceedings and their outcome.
- Immediacy - ADR is not suitable where one
party wants the other to stop instantly. This
could be in the case of one party wanting to
prevent another from selling goods which are of
a similar design to something they are selling or
in the case of harassment.
- Time limits It is worth remembering that if
there is a time limit involved in a legal claim it
may not be appropriate to use ADR. It does not
put a stop to any legal time limit and may mean
that, if unresolved, the time to make a legal
claim has passed.
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LEGAL INSTITUTIONS
Malaysian Bar
- A professional body established under the
Advocates and Solicitors Ordinance 1947
which was repealed by the Legal Profession
Act 1976 (LPA).
- The purpose of Malaysian Bar is to uphold the
rule of law and the cause of justice and to
protect the interest of the legal profession as
well as the public.
- The management is called the Bar Council,
which comprises of 38 members who are
elected annually to manage the affairs and
execute the functions of Malaysian Bar.
Legal Profession in Malaysia
- Governed by the LPA 1976.
- The legal profession in Malaysia is a fused one
with a current membership of approximately
12,000 members.
- Each advocate and solicitor is automatically a
member of the Malaysian Bar so long as they
hold a valid Practicing Certificate.
- Two categories of person who are eligible for
admission to legal profession are, 1) qualified
person, and 2) articled clerk.
What is meant by qualified person? (S.3 LPA 1967)
- Has passed the final examination leading to the
degree of Bachelor of Laws in University of
Malaysia, University of Malaya in Singapore,
University of Singapore and National University
of Singapore; or
- A barrister-at-law of England; or
- Is in possession of such other qualification as
may by notification in the Gazette be declared
by the Board to be sufficient to make a person
a qualified person for the purposes of this Act.
Faculty of Law
- Means the Faculty of Law of a University
established under the Universities and
University Colleges Act 1971, the Faculty of
Law of UiTM established under UiTM Act 1976,
and the Kuliyyah of Law of IIUM established
pursuant to Companies Act 1965.
The admission and qualifications for admission to
Malaysian Bar (S.10-19 LPA 1976)
Other requirements include:
- Attained the age of 18.
- Good character.
- Either a citizen or a permanent resident.
- Has served the prescribed period of pupillage
(nine months).
- Has passed the BM Qualifying Examination.
Attorney Generals Chamber
- Office of the AG of Malaysia.
- Was classified as a Ministry in 1951 and held
responsible for all legal matters involving the
government.
- 1980 present: Prime Ministers Department.
Divisions of AGs Chamber
1) Prosecution Division
- Conduct prosecutions in all courts.
- Provides advice to enforcement agencies.
- Perusal of investigation papers.
2) International Affairs
- Provide legal advice to Government on
international law.
- Represent Malaysia in international arena.
- Harmonize Malaysian law with international
treaties.
- Drafting various instruments relevant to
Malaysian obligations under international
treaties.
3) Appellate and Trial Division
- Conducting trials and appeals for all high
profile, complex and sensitive case
- Provide legal advice in preparing trials to
government agencies.
4) Civil Division
- Represent government in any civil proceedings,
case concerning public, religious, social
interest.
- Represent AG in admission of lawyer.
5) Advisory Division
- Provide legal advice in general area of laws ; 2
section municipal and Shariah.
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6) Drafting
- Draft and vet principal and subsidiary
legislation.
- Translate legal documents, Act in English to
Bahasa Malaysia vice versa.

7) Law Revision and Law Reform

- Review archaic and obsolete law, publish
revised text of laws.

8) Research
- Provide legal advice and opinion, manage legal
knowledge and provide database for law.

9) Management
- Conducting matters involving human resources.

Attorney General

10) The principal legal advisor to the government.

11) Head of the AGC.
12) Highest ranking Public Prosecutor.
13) Appointed by YDPA, on the advice of PM (a
person who is qualified to be a judge of Federal
Court).
14) Current AG: Mohamed Apandi Ali.
15) His roles and responsibilities include:
1) To advise the YDPA or the Cabinet or
Ministry on legal matters, and to perform
such other duties of a legal character,
referred or assigned to him.
2) To institute, conduct or discontinue any
proceedings for an offense, other than
proceedings before a Shariah, Native or
Martial Courts.

Educational Institutions (diverse institutions of higher

learning created to educate for life as well as for a
profession and to grant degrees.)

16) The first national law school is UM (1972).

17) There are seven law schools currently
recognised to practice, i.e. UiTM, UM, UKM,
UIAM, UUM, MMU and UniSZA. Most private
institutions offer combination of law degree with
overseas university in the UK, Australia, NZ,
and external LL.B London degree.
18) In Malaysia, law degrees: LLB (Bachelor of
Laws) which allows students to go on to take
the Malaysian Bar examinations, in order to
become a practicing lawyer.
19) The Certificate in Legal Practice (CLP) is taken
by foreign law graduates, graduates of B.Juris
(UM) and BLS (UiTM).